Read The Recorder‘s roundup of the stock-option backdating scandal. There won’t be a test later … but there might be a subpoena.



Brown, a partner at Orrick, Herrington & Sutcliffe who represents 11 witnesses in the case, didn’t have much to say Thursday. “I’ve received the motion and we intend to respond,” he said.

But according to Peter Henning, a professor at Wayne State University Law School and an expert on white-collar prosecutions, it’s unlikely that a lawyer in Brown’s position would let his clients be deposed without a guarantee of immunity.

Henning said prosecutors are unlikely to make such a guarantee at this late stage of a case. “They don’t want to go down that road, and they certainly don’t want to be forced to do it,” he said.

Furthermore, he said, Breyer is unlikely to honor Marmaro’s request to order the government to facilitate depositions, since case law discourages judges from ordering immunity.

Marmaro seemed especially perturbed with the recent non-deposition of one witness.

“It is difficult to comprehend how the witnesses now before the court can credibly claim fear of self-incrimination,” he wrote, pointing to the example of a former Brocade compensation and benefits analyst who had met with the Justice Department and SEC � and with lawyers for two defendants � before even hiring a lawyer.

“Yet, once she retained counsel, [Walter] Brown, Ms. Weaver suddenly expressed a desire to invoke the Fifth Amendment in response to all questions from the defendants in this case at her deposition on January 19, 2007.

“She now purports to fear incriminating herself by answering such benign questions as her educational background, whether she had ever met with the SEC or DOJ, whether she knew the civil defendants (even though one was sitting in the deposition room), whether she would testify if summoned by the SEC at trial, and virtually any other topic other than her name and address,” Marmaro wrote.

The easiest way out of the muck, Henning said, would be for Breyer to stay the civil case until the criminal trial is over. But that could be a problem � Breyer said at a Wednesday hearing that he wants to move the Brocade trial along without delay because he’s planning to hold civil trials in the fall in two massive drug tort cases.

If the judge is unwilling to issue a stay, Henning said, more wrangling is likely in the works.

“It’s a mess,” he said.