November 24, 2006
Do Not Punish Entire Investigation Trade for HP's Deviant Probe
Politicians, legal experts and journalists have professed to be appalled and scandalized by Hewlett Packard's recent boardroom antics. In truth, their expressions of surprise are more akin to the reaction of Capt. Renault in "Casablanca" when he tells Rick, "I'm shocked, shocked to find that gambling is going on in here!"
The reality is that lawyers and their investigators have had long, and sometimes questionable, relationships. Today's headlines are about HP, but only recently the FBI's probe of investigator Anthony Pellicano was making entertainment-industry insiders and attorneys nervous.
Depending on the circumstances, lawyers and the clients they represent will go after information they consider vital, and they often do not care too much about how investigators acquire it. This is all the more true in the pressurized world of corporate politics and high-stakes litigation.
And therein lies the problem. Someone will always be willing to pay for information, and someone will always be willing to seek it out by hook and, in some cases, by crook. In many instances, lawyers drive the train for their clients by directing their investigators to get information, no matter how unscrupulous their methods are. Later, when questions are raised, the lawyers switch from train engineers to caboose conductors, as they seek to hide behind investigators as cover.
In the case of HP, however, the California attorney general has indicted both the hands-on investigators as well as high-ranking corporate insiders.
Undoubtedly, in the months ahead, the legal maneuvering will prove fascinating as it becomes clear who knew what and when they learned it.
While we can all deplore some of HP's tactics, investigation, like anything else, is just a tool that can be used for good or ill. The HP investigation was regarding a leak of board deliberations to the media, but would there be as much criticism of HP directors if they were investigating embezzlement by a corporate officer, or working to plug a leak of trade secrets to a competitor?
It is a fact of life that people who are willing to commit bad acts do not play by the rules, nor do they readily reveal their misconduct. We all want our own privacy protected, but we sometimes want, and need, to have someone else's privacy intruded upon. When the battered woman wants a restraining order served on her ex-boyfriend, she needs to know where that boyfriend is living so he can be served. When the low-wage worker is suing his sweatshop employer for paying below-minimum wages, the worker's lawyer wants an investigator to find the employer's assets. When employers are being hit with fraudulent workers compensation claims, they want evidence to disprove those claims.
In an era when law enforcement and governmental regulators are overworked, underfunded and sometimes uninterested in many day-to-day disputes, investigators can fill a gap by finding the facts individuals need to expose unfair business practices, seek compensation for injuries, or protect themselves or their companies from fraud. Like journalists, investigators can provide a vital fact-finding service that is very much in the public interest. And there are many investigators who get their information in a straightforward manner, without resorting to the use of pretexting and other fraudulent behavior.
Viewed from the outside, the HP investigation is breathtaking in its scope and intensity. There is something frightening about a corporation using its wealth and resources in a private campaign to obtain information.
However, as lawmakers consider legislation to address these abuses, they should not over-react. Bad facts can make for bad laws, unless there is careful consideration of all the ramifications.
Legislators need to balance reasonable privacy concerns against the legitimate need for information that individuals and businesses sometimes have in our modern world, information that is not always readily available in public libraries. If lawmakers adopt rules that hamstring legitimate investigations, they may close off important tools for resolving disputes, preventing fraud and exposing injustice.
This issue is an easy target for demagogues, and politicians will get all the mileage they can off of this story. All of us should be wary, however, of condemning the entire practice of investigation. Who knows when any of us may need it ourselves?
Keith Rohman is the president of Public Interest Investigations in Los Angeles and an adjunct professor at Loyola Law School, where he teaches fact investigation.