Contract Lawyers, Search Terms Blamed for Late-Disclosed McAfee E-Mails

A Howrey lawyer who headed an internal investigation of backdating at McAfee partly pinned the blame on contract lawyers when he told a judge yesterday why five corporate e-mails weren’t disclosed sooner.

The e-mail had been turned over on the eve of trial for the company’s former general counsel, Kent Roberts.

Howrey partner Robert Gooding Jr. said in a hearing yesterday that contract lawyers at Howrey had marked two of the e-mails as not relevant, the Recorder reports. The e-mails show that a date change on a stock option grant to Roberts was not a secret—the company’s former controller and another employee both discussed it.

Gooding apologized and said the error was “not deliberate in any way, shape or form.”

“In a document production this size, these things do happen,” he said.

The lawyer ticked off reasons for the other late-disclosed e-mails: One did not show up because it didn’t include any of Howrey’s initial search terms, according to an account of the hearing in the Daily Journal (sub. req.). And two were marked relevant but Howrey lawyers later determined they weren’t responsive to the subpoenas.

Assistant U.S. Attorney Laurel Beeler said she disagreed with the determination that the two e-mails weren’t responsive, but she and defense lawyers both said they didn’t affect the case against Roberts.

The e-mails had been turned over at 10:40 p.m. Tuesday after the prosecution asked for travel records for the company’s former controller. Beeler had complained in a hearing on Wednesday that the documents were subpoenaed two years ago.

U.S. District Judge Marilyn Hall Patel had demanded the Thursday hearing to learn why the e-mails weren’t disclosed and had warned on Wednesday that “heads will have to roll.”

After hearing the explanation on Thursday, the judge asked for more information on how the discovery technology worked. “OK, nobody’s head rolled,” Patel said.

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