Follow all the coverage of Hewlett-Packard’s boardroom spying scandal and the continuing legal fallout.
Wilson Sonsini Goodrich & Rosati spokesperson Courtney Dorman did not respond to questions asking whether Sonsini plans to testify or whether he plans to assert privilege. It’s also not clear if Sonsini has retained a lawyer.
HP couldn’t be reached for comment late Friday.
According to Kendall, the penalty for asserting the privilege could be more severe than a contempt citation. “If somebody asserts [the privilege], the House could lock that person up in the House of Representatives detention facility.” Kendall notes, however, that he’s not aware of that happening.
The parties usually negotiate a nonwaiver agreement that allows a witness to testify about specified matters, with the House agreeing that it won’t assert that the witness has waived the privilege on all matters. Paul, Weiss’s Fagen says he negotiated with congressional staff which topics he would discuss. But even a nonwaiver agreement creates risk. “The danger with that,” said Kendall, “is that [the agreement] is not binding on third parties.” California Attorney General Bill Lockyer, for example, could assert that Sonsini or Baskins waived the privilege by testifying.
Another possible problem for Sonsini and Baskins is the so-called crime-fraud exception to the attorney-client privilege. Under that doctrine, the privilege is invalidated if a client used a lawyer to commit a fraud or crime. “The conduct would have had to have broached the possibility of criminal conduct,” said Deborah Rhode, a Stanford Law School professor. If so, Sonsini and Baskins would clearly not be bound by privilege, she said. She adds that it doesn’t matter whether they had criminal intent, or whether they were responsible for any crime.
Susan Beck is a senior writer for The American Lawyer. Her e-mail address is [email protected]. Justin Scheck is a Recorder reporter. His e-mail address is [email protected].