Autonomy Trial Autonomy's former US head of sales testified to London's High Court how he took part in a secret US grand jury legal hearing against British software firm Autonomy's chief financial officer.
Not only that, but Christopher "Stouffer" Egan also claimed he "can't remember" whether or not he took part in a second grand jury process after the trial of Sushovan Hussain, Autonomy's CFO.
Egan was the CEO of Autonomy's US division, though he readily accepted in court yesterday that in reality he was just its US head of sales. Under cross-examination from Robert Miles QC, barrister for former Autonomy CEO Mike Lynch, Egan made some surprising admissions given his previous reluctance to testify.
Referring the US millionaire* to his previous testimony in the American criminal case against Hussain, Miles asked Egan how much contact he had had with government lawyers in that case and HPE's lawyers more generally. Egan agreed that he had met various lawyers no fewer than 22 times.
Miles then read out part of the transcript from Hussain's criminal trial in the US last year, where Egan was giving evidence about his pre-trial meetings with American prosecutors. Having repeated to the High Court what Egan had told the American legal system, Miles asked him: "You rephrased your answer [to their questions] until they were satisfied, didn't you?"
Like the UK, America theoretically bans the coaching of witnesses by lawyers, though in practice the ban amounts to allowing lawyers to attack the credibility of the other side's witnesses, rather than anything else. Egan had said in the US criminal case that before the trial he was asked questions by prosecuting lawyers "over and over". Though he testified that there was no "rehearsal" of his answers, he said he was asked the same thing repeatedly until his answers changed – at which point the lawyers asked something different.
"I did not," replied Egan, who was appearing via video link and wearing a dark suit with a blue-and-white striped tie. "They asked me a question – this transcript makes it sound as though the question would be repeated identically. That was not the case in my memory. If they asked a question, I would endeavour to answer it. If they asked a similar or related or slightly different question, I'd endeavour to answer it, over and over."
"You rephrased your answers, didn't you?" retorted Miles. His implication was plain: this was a form of coaching, he was saying, where prosecution lawyers put questions to Egan over and again, teaching him what the acceptable answers were ahead of the proper court hearing.
Earlier in the day Egan had denied, in the High Court, that HPE had held off from suing him over the Autonomy writedown in order to secure damning testimony to bring down Lynch and Hussain, strongly denying Miles' assertion that "the way to protect yourself is to provide the prosecution with the evidence they want, to blame Mr Hussain and now to blame Dr Lynch."
"Have you been involved in further grand jury hearings after the trial of Mr Hussain?" asked Miles.
Laurence Rabinowitz QC, HPE's lead barrister, got to his feet with his hand outstretched as if to say "stop", saying: "These deliberations are secret, my lord!"
American law means grand jury proceedings are indeed heard in secret. English law, however, means whatever is said in our courts can be freely published, under the age-old doctrine of absolute privilege.
"Secret as to the fact, or secret as to the content?" enquired the judge, Mr Justice Hildyard.
"Well, as to the content," said Rabinowitz. "That goes to the context of the evidence."
An unamused Hildyard** replied: "So I'm not allowed to know whether he attended at the grand jury?"
Weakly, Rabinowitz murmured: "Well, it's out now, my lord."
A little later, Miles asked Egan directly whether or not he had been involved in further grand jury proceedings after the one involving Hussain, to which the former salesman replied: "I don't – I don't know… I can't remember."
Implied in this exchange was the wider context of this case. American criminal prosecutors working for that country's legal system are conducting their own criminal trial, issuing legal proclamations at the same time as the High Court is trying to make sense of the case between Hewlett Packard, Lynch and Hussain. On the Friday before the UK case opened, the Americans published a fresh criminal indictment against Mike Lynch, garnering plenty of headlines on both sides of the Atlantic.
HPE has consistently denied in court that it has any links to American prosecutors, or any influence over the way in which those prosecutors are handling their local criminal case against the ex-Autonomy execs.
Egan will continue giving evidence this week. He is scheduled to conclude on Friday. The Register will be reporting each day of his evidence. The case continues. ®
* Egan agreed with Miles that he is worth around $10m once his property portfolio is taken into account. He paid $923,000 in "disgorgements" to American prosecutors and secured a deferred prosecution agreement in respect of conspiracy to commit wire fraud.
Lynch and Hussain’s legal strategy seems to be to ask each witness numerous questions about their meetings with US government and HPE lawyers, and then to ask whether or not they wrote their witness statement themselves. In theory they’re meant to; in practice this seems to differ somewhat.
The Autonomy duo’s own witnesses will not begin appearing in court until the middle of summer, at which point HPE’s legal team will be cross-examining them themselves.
** Halfway through Egan's evidence, one of the attorneys sitting with him, on the US end of the video link, declared that there had been a problem and asked the High Court, "Can we take a break please?"
The court – including the judge – remained dead silent as people on screen began fiddling with the video link from Egan's end. The witness himself got up and wandered off. More techies appeared on screen, one announcing: "I'm sorry, this is being looked at right now." Someone then disconnected the US end of the link, blanking the screens in the courtroom.
"I found the witness most interesting," muttered Mr Justice Hildyard, pointedly studying his fingertips as his courtroom ground to a halt with the witness on the stand walking away without the judge's permission or even involvement. A few lawyers laughed nervously.