Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hussain

United States District Court, N.D. California

February 28, 2018




         Hewlett-Packard (“HP”) is not a party in this case. However, as the purported victim of the wire and securities fraud allegedly perpetrated by the Defendant, it has loomed large throughout this prosecution. The Defendant, Sushovan Hussain, has repeatedly argued that HP should be subjected to the same disclosure obligations as the government, and has served several subpoenas on HP pursuant to Federal Rule of Criminal Procedure 17. In ruling on one of Hussain's Rule 17 requests, for notes of witness interviews prepared by HP attorneys, the Court ordered HP to submit the requested notes for in camera review so that it could assess HP's claims of attorney-client privilege and work-product protection. Having reviewed the submitted documents, the Court finds that HP has waived its work-product objections by disclosing similar documents to the government. Accordingly, the Court orders HP to produce the requested documents, with necessary redactions to protect both attorney impressions and opinions and materials over which HP claims attorney-client privilege, as soon as possible. Once HP has produced these materials, the Court will hear further argument, if necessary, on any additional redactions HP has chosen to make.

         I. BACKGROUND

         HP's attorneys have conducted a great many interviews in this case. HP has conducted internal investigations of alleged fraud in connection with its acquisition of the company for which Defendant worked, Autonomy; has interviewed employees and others to defend itself from derivative lawsuits; has conducted interviews in preparation with its own civil litigation against Autonomy; and has conducted other interviews at the request of the United States Attorney's Office in connection with that office's criminal prosecution of Hussain. The government specifically requested only interviews prepared by HP attorneys that were not protected as attorney work product, protected under the attorney-client privilege, or shielded by any other privilege, and made it clear that it was not asking HP to waive any privilege.

         HP turned over to the government interviews of HP employees in late 2013 that were conducted by outside counsel. Some of these interviews, conducted by the law firm Proskauer Rose, came at the request of HP's Demand Review Committee in its deliberations over how to respond to a shareholder demand. HP Rule 17 Mot. (dkt. 110) at 14. Others, conducted by the law firm Morgan Lewis & Bockius, came at the request of the government. Id.

         HP has withheld a number of other interviews, however. These includes interviews of HP Autonomy personnel conducted by in-house counsel in 2012, as well as interviews conducted by several law firms in connection with a number of different litigation matters since 2013. HP argues that all the interviews it has not turned over are protected in their entirety by as attorney work product, and that some additional interviews are protected in whole or in part by the attorney-client privilege.


         HP makes three objections to Hussain's requests for the notes of these interviews. First, it argues that these materials will only be used for impeachment purposes, and notes that impeachment materials are generally not discoverable under Rule 17. Second, it argues that the statements fall under Rule 17(h)'s exception for witness statements. Third, it argues that the materials are attorney work product because they were prepared in advance of litigation, and that some of the materials are also protected by attorney-client privilege. The Court takes each of these arguments in turn.

         A. Rule 17(c) Discoverability

         HP argues that the materials are not discoverable under Rule 17(c) because their only use is for impeachment. It relies on the Supreme Court's statement in United States v. Nixon that “[g]enerally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.” 418 U.S. 683, 701 (1974). However, this Court did not require the materials to be produced in advance of trial-it ordered them produced for in camera review during trial. While the Nixon Court's statement is somewhat opaque, the Court was likely referring to the Jencks Act, passed in 1957, which requires production of witness statements by the government only after the witness has testified. See 18 U.S.C. § 3500(b). This interpretation of Nixon is consistent with the holding of United States v. Fields, in which the Ninth Circuit held that the district court had abused its discretion by requiring production of impeachment materials under Rule 17(c) prior to trial. See 663 F.2d 880, 881 (9th Cir. 1981). Accordingly, it was proper to require HP to produce potential witness statements for in camera review during trial.

         B. Rule 17(h) Exception

         HP next argues that Rule 17(h) precludes the materials' production. Rule 17(h) states:

No party may subpoena a statement of a witness or of a prospective witness under this rule. Rule 26.2 governs the production of the statement.

Fed. R. Crim. P. 17(h). At least one Court has interpreted Rule 17(h) to mean that witness statements may not be compelled from third parties under Rule 17. See United States v. Skylar Ariel Phoenix, No. 5:14-CR-00318-LHK, 2015 WL 6094882, at *3 (N.D. Cal. Oct. 16, 2015). However, the better view is that Rule 17(h) only applies to statements in the possession of the government. See United States v. Young, No. 03-20400 BV, 2004 WL 784840, at *2 (W.D. Tenn. Mar. 4, 2004). Rule 17(h) was added in the 1979 amendments to the Criminal Rules, with the advisory committee noting that the addition was “necessary in light of proposed rule 26.2, which deals with the obtaining of statements of government and defense witnesses.” The advisory committee's notes reflect an intention to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.