News Short

State Charges Dropped in HP Spy Case

Judge says pretexting conduct amounted to "boardroom politics and a betrayal of trust rather than criminal activity."

June 29, 2007 — IDG News Service (San Francisco Bureau) —

A state judge in California on Thursday dismissed charges against the three remaining state criminal defendants in the Hewlett-Packard spying case.

Santa Clara County Superior Court Judge Ray Cunningham dropped charges against former HP attorney Kevin Hunsaker and private investigators Ron DeLia and Matthew DePante.

The charges were dropped for their part in the use of false pretenses to obtain phone records of individuals they were investigating for leaking HP board deliberations to news media.

Cunningham agreed to the dismissal after each of the defendants performed at least 96 hours of community service. In fact, each of them did more than required.

According to each of their attorneys, the defendants did the following: DeLia, the owner of Security Outsourcing Solutions, a security firm hired by HP, performed 100 hours of community service at a veterans' organization; DePante, of Action Research Group, an investigative firm hired by DeLia, performed 120 hours at a church organization; and Hunsaker performed 165 hours at a nonprofit legal organization.

"At worst, the conduct in this case amounted to boardroom politics and a betrayal of trust rather than criminal activity," Cunningham said from the bench in his courtroom in San Jose, Calif.

None of the defendants was in the courtroom, but they were represented by their attorneys. Deputy State Attorney General Ralph Sivilla said the state agreed to the dismissal.

"I think everybody at Hewlett-Packard thought they were doing the right thing, the legal thing," Tom Nolan, Hunsaker's attorney, said after the hearing. "They had a serious problem and they relied upon counsel. ... But as the [judge] said they really didn't commit any crimes."

The serious problem Nolan referred to, of course, was the leaking of board deliberations to the media. To trace the source of leaks, the private investigators obtained calling records of HP directors, some employees and several reporters covering HP.

At a hearing in March, Cunningham dismissed all charges against former HP Chairwoman Patricia Dunn and said he would dismiss the charges against the other three if they performed community service.

The scandal "has achieved much public good," Cunningham said, in that it has brought attention to the problem of "pretexting," or using false pretenses to access private records. It has resulted in the passage of state and federal laws specifically banning the practice. Also, HP agreed to a $14.5 million civil case settlement with the state of California in December 2006 that will support a state program focused on privacy protection.

Cunningham noted that The Wall Street Journal editorialized that his dismissal decision in March showed "wisdom and compassion." Given that a Journal reporter was one of the victims of the pretexting, that's a notable endorsement, he said. Bryan Wagner still faces sentencing in federal court in San Jose on one count of conspiracy and one count of aggravated identity theft. He pleaded guilty to those charges in January. Wagner was hired by Action Research Group to do the actual pretexting to obtain the phone records, according to court testimony.