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Heads Rolling? More on What Not to Do during a Trial

By Stony Olsen

When the judge adjudicating your case states flatly that “heads will have to roll, because this is outrageous,” you’d
better hope that said head is not your own.

09/22/08 Predictably, this has led to an utter mess, bringing the

That’s what attorneys
representing McAfee are hoping
right about now. This will likely
show up in some ethics casebook
soon, assuming more fireworks
occur. When vital discovery
doesn’t show up until ten hours
before the trial starts, things are
rotten somewhere.
That’s what happened in this case. The government is
prosecuting Kent Roberts, a former McAfee general counsel
for alleged stock option backdating shenanigans. But there
are three parties involved here: the Feds, Roberts, and
McAfee itself.
Two years ago, a grand jury issued a subpoena to McAfee.
Then the prosecutor, Laurel Beeler, over the weekend before
trial, asked McAfee for travel records for the company’s
former controller. Based on the email the prosecution
received, Beeler then broadened their request. That led to
another 18 pages of emails, much more than anticipated,
which showed that the former controller was involved in
changing the date on an options grant. Of course, these
emails should have been turned over after the subpoena
was issued two years ago.
entire reason for the prosecution into question. The jury
got to go home, and the development has raised all sorts
of attorney-client privilege questions. McAfee claims
that all the relevant documents were turned over to the
“special litigation group,” a group they set up to manage
the extensive options scandal they are involved with. So
who the question of who to blame for the oversight is quite
murky, though oddly the two parties at issue in the case
seem to be off the hook. When was the last time both
named parties to a case in a discovery dispute weren’t at
fault?
For fans of legal soap operas, this case appears to have it
all: zealous prosecutors, defendants pointing the fingers at
each other, fee disputes, discovery surprises, mad judges,
and generally all sorts of popcorn. Earlier this year, McAfee
sued its counsel WilmerHale in another case because of
the high legal fees Wilmer charged. Meanwhile, Roberts
is trying to stick McAfee with his legal defense bill in yet
another fee dispute.
The case promises to provide a lot more entertainment to
court watchers.

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