back to article My HPE-funded lawyer wrote my witness statement, reseller boss tells High Court

The boss of an HPE-affiliated reseller asked a barrister "what is this exactly?" when shown a copy of his own witness statement in London's High Court. Capax Discovery CEO John Baiocco then said he was "pretty sure" his HPE-funded lawyer had written it for him. Just to reinforce what he said, Baiocco then added that "these are …

  1. Anonymous Coward
    Anonymous Coward

    what a FUBAR, none of these guys could run a 5k race, let alone a company of any size.

  2. David 164

    In legal terms this read like busted!

  3. Pascal Monett Silver badge

    Did I read that right ?

    Did some numbskull just admit in court to having testified falsely ?

    Does that not carry a hefty penalty, or is he going to just Trump it out without consequence ?

    1. JassMan

      Re: Did I read that right ?

      @Pascal Monett

      If you read what I read, ie.

      "Baiocco denied that he had met HP's lawyers before signing his witness statement to confirm that its contents were true. Though, while answering earlier questions, he confirmed he had met them a number of times before the US criminal trial against Autonomy chief financial officer Sushovan Hussain."

      Then yes it looks like a clear case of perjury under UK law. Maybe you can do this sort of thing in the US, but on the right side of the pond you swear to tell the truth, the whole truth and nothing but the truth.

      There is of course the slightest possibility he fell through a hole in the spacetime continuum so that he was able to meet them out of sync with everyone ele's reality. If this is the case he needs to make a full and plausible explanation of how they work.

      Mind you, I get the impression there are becoming more and more rents in reality, especially when Nigel Farage is involved.

      1. Doctor Syntax Silver badge

        Re: Did I read that right ?

        "on the right side of the pond you swear to tell the truth, the whole truth and nothing but the truth."

        The actuality is that you can only answer the questions counsel ask. If the question is along the lines of "tell us in your own words what happened" then fine. If counsel takes the approach of micro-managing (while avoiding leading) it's more tricky. Why would counsel do that? To limit the other side's scope for cross-examination.

      2. Anonymous Coward
        Anonymous Coward

        Re: Did I read that right ?

        I only know what I've read here but I think you may be hasty. For example:

        - he may simply have been mistaken

        - he may have been confused between multiple teams of lawyers (which will happen on big matters)

        - there might be ambiguity in El Reg's reporting of what wa said at trial -> see for example the slight blurriness between HPE's lawyers and the HPE-funded lawyers. It's quite common for people to fund other people's lawyers if they have the same legal interests, but that doesn't mean the lawyers report to the person who pays the bills. (I know this because I have been one such lawyer).

    2. Fatman
      Thumb Up

      Re: Did I read that right ?

      One upvote for the POTUS reference.

    3. Anonymous Coward
      Anonymous Coward

      Re: Did I read that right ?

      He appears to sign a lot of documents without really understanding what he is signing. Or who prepared them. And doesn't appear to be entirely clear who witnessed him signing them.

      1. Doctor Syntax Silver badge

        Re: Did I read that right ?

        At least he's aware he signed it.

  4. Doctor Syntax Silver badge

    Always read the paper before you sign it.

    I've had the experience of having had a witness statement retyped* and something significant left out. But having the whole thing written by someone else? Amazing.

    * It happens occasionally for perfectly valid reasons.

    1. Anonymous Coward
      Anonymous Coward

      Re: Always read the paper before you sign it.

      IAAL. It's quite common for first and subsequent drafts of witness statements to be written by lawyers (and cops), with the witness giving input/feedback/corrections etc. The reality is that most people can't write for toffee and you need to push back at many witnesses' inane rambling so the court can make sense of stuff.

      HOWEVER you always have to make it clear to even the busiest or thickest witness that this is their statement, ghat they need to read every single word every single time, they need to be happy with every single word, and if they're not they shouldn't sign it because sod's law it will all fall apart in court otherwise.

      1. Doctor Syntax Silver badge

        Re: Always read the paper before you sign it.

        Greetings AL. The circumstances in which I've seen this happen were either the original statement included references to material not before the court (e.g. exhibits relating to people no longer suspects) or the case going through a process where the statement was expected on different forms.

        It has led to policemen turning up expecting a quick signature and finding that they had to wait while I went through both versions very carefully and I presume my colleagues in similar circumstances would have done the same.

  5. Nick Kew
    Thumb Up

    Like turning up to a job interview to find you don't recognise the CV the client has been given.

    Or like trying to read your own patent once it's been lawyerised.

    How do I give the Reg a generic thumbs-up for its reporting of this case? It's become something of a gripping soap-opera!

    1. BebopWeBop

      I've read a number of patents that have been lawyerised. The operative, of course, being read. I find them wordy, sometimes making claims for extensions of purpose that are only barely possible. But I did read them, they were just dressing to my key technical case.

      1. Nick Kew

        My link to his blog is now dead, but Eric Brechner (at the time, high up in Microsoft) said it nicely when he couldn't decipher his own patent. I saved this quote back in 2008:

        When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section — the only section that counts — was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.

    2. Doctor Syntax Silver badge
      Thumb Up

      "How do I give the Reg a generic thumbs-up for its reporting of this case? It's become something of a gripping soap-opera!"

      Seconded.

    3. Jim Andrakakis

      “Like turning up to a job interview to find you don't recognise the CV the client has been given”

      Happened to me. Huge embarrassment, not to mention anger towards the recruiter.

      1. Nick Kew

        I'm pretty sure anecdotes have been aired in this very column before now. In my case, the most egregious offender wasn't an agency but rather a "body-shop" employer.

    4. DontFeedTheTrolls
      Pirate

      "Like turning up to a job interview to find you don't recognise the CV the client has been given"

      Had that happen more than once. Agency sending their own version of CVs, 10 minutes in and its clear I'm not the right person for the job, so the interviewer and I review what they'd been given against my copy of my CV I had on me. All candidates from that agency were immediately dropped, and I won't let them put me forward anymore.

      1. Doctor Syntax Silver badge

        "Agency sending their own version of CVs"

        Or agency sending their own version of someone else's CV because they happened to have the same name. That didn't quite happen to me - they just sent me his contract afterwards.

    5. Tom -1

      > Like turning up to a job interview to find you don't recognise the CV the client has been given.

      The people doing the interviewing are pissed off as much as the interviewee is, and the recruitment agency that gave them that CV may well be blacklisted by recruitment agent so that they get no more business from that client company. This is more likely to happen if the interviewee brings a copy of his real CV with him and shows it to the interviewers as soon as it becomes clear that the agency has modified it. I've been interviewer in those circumstances in the past, aand at other times the interviewee in much the same circumstances. I reached the conclusion that most recruitment agencies employ mainly out and out deceptive liars decades ago.

      > Or like trying to read your own patent once it's been lawyerised.

      My patents have always had understandable claims, even after the lawyers have revised them. Except when I refused to a party to submitring the patent application because the lawyer (or perhaps the person who was a joint-patenter for the patent) had rendered it incomprehensible and possibly dishonest

  6. Ashentaine

    >"I'm not sure about how much of this I actually read," replied Baiocco. "But I signed it."

    You know you're in trouble when your courtroom testimony sounds like the setup for a punchline in a Dilbert comic.

    1. Trollslayer

      Did the witness have pointy hair?

    2. Doctor Syntax Silver badge

      "setup for a punchline in a Dilbert comic."

      Setup? This was the punchline.

    3. Michael Wojcik Silver badge

      This is why I'm not a CEO. I just can't bring myself to sign something without reading it first.

  7. GrapeBunch
    IT Angle

    Handshake protocol

    IANAL. My reading of the article was different. HP's argument, which for the week preceding had sounded like bluster, begins to put meat on the bone. So the two signed a document which did not reflect the real deal. The handshake did. Allegedly. That must happen a lot.

    At the time the witness made the deal, did he have any inkling of what its consequences might be, in regard especially to HP? Probably not. So they might lock him in an executive hotel for a couple of years, but he's taking one for the team. And $5bn is $5bn. He might even emerge, Conrad Black-like, smelling not of the stink that got him convicted.

    If agreeing that the real deal is not the signed deal, if that is a serious crime, then they wouldn't need to have explicit provisions in law banning bribery. It would already be amply illegal.

    Of course nothing is proven, it's just testimony. But this is the first time the case hasn't looked like a walkover. Please downvote me. It sounds sexier than upvote. You know you want to.

    1. Anonymous Coward
      Anonymous Coward

      Re: Handshake protocol

      I think your post could have been summed up with this infamous Monty Python line...

      nudge-nudge wink-wink, say no more

      Getting an HP lawyer to write a statement is well beyond the pale as well as probably illegal.

      HP is at the moment looking like a bunch of [redacted] [redacted] if not spoilt children. And to think I once nearly worked for them (Shudder). got off lightly methinks.

    2. /\/\j17

      Re: Handshake protocol

      "So the two signed a document which did not reflect the real deal. The handshake did."

      Except the two in question are NOT the two in the dock. The two in the dock would probably be the ones wih their names on the written contract that says "no changes to this unless in writing". All this witness seems to prove is corruption in the US arm of the company, so a fraud committed by the witness (come on, he must have been at least a LITTLE suspicious that everything wasn't 100% above board when the company he was reselling for offered to just give him money) and a third party who isn't on trial here.

      Unless someone can find evidence that Lynch/Hussain knew about and approved/did nothing to stop it this is irrelevant to the actual case on trial and should be a separate case in the US courts between the state or HP and Baiocco/Egan.

    3. Anonymous Coward
      Anonymous Coward

      Re: Handshake protocol

      Verbal contracts ain't worth the paper they're written on.....

    4. I ain't Spartacus Gold badge

      Re: Handshake protocol

      You've got a point. But there's an awfully big "but" here. From a witness who's admitted that his testimony is not his own. That does rather knacker his credibility.

      Also he signed a deal that gives Automony all this power. Is it then credible to believe that he did the real deal on a handshake - where he was basically screwed if Autonomy failed to come through on it, and just relied on the written deal in court.

      You can easily have extra arrangements on top of the written agreements, but when the real agreement is at odds with the written one you've got a very dodgy basis on which to conduct business.

      I can remember having a price fixing discussion once. Working for a retailer. A supplier had offered to fix prices with us, basically because their salesman had screwed up and given us a better deal on a laptop range than he'd given to Dixons. Back in the days when Dixons were the 800 pound gorilla of the UK tech retail market, and they'd signed a deal with them about not giving other retailers better deals than Dixons got - Dixons had 70% of the high street retail electronics market in the late 90s.

      Anyway the first question we discussed was how do we guarantee this non-written agreement actually happens. The second was, can we accept it and then report Dixons to the Monopolies Commission for price fixing (like Virgin airlines once did to BA). If you report it, you tend to get off scot free. The third was, what if Dixons report us first? Then we decided not to get involved.

    5. Anonymous Coward
      Anonymous Coward

      Re: Handshake protocol

      I would imagine that the problem with the handshake deal taking priority over a written contract is that if any dispute went to court, the parties would rely on the character of the witnesses in order for a judge to decide if the written contract remained valid or not.

      i.e. did Egan have the authority to agree this hand shake contract on behalf of Autonomy (and likewise for Baiocco)? Is there anything that validates the existence of this spoken contract other than the two parties word? Do they seem reliable and trustworthy witnesses that are careful in their business dealings, do they appear to pay attention to details and are their stories consistent?

      1. Doctor Syntax Silver badge

        Re: Handshake protocol

        Is there any witness to this handshake deal. Not just a witness, if any, who saw the handshake but one who actually heard the words spoken as well?

    6. Doctor Syntax Silver badge

      Re: Handshake protocol

      "But this is the first time the case hasn't looked like a walkover."

      Courts like a contemporaneous account (police witnesses reading from their notebooks tend to be asked to confirm their notes made at the time). A written agreement vs an alleged verbal agreement committed to paper years later? Not so good.

      I do wonder how Egan is going to emerge from all this.

  8. Anonymous Coward
    Anonymous Coward

    Typical CEO

    Remember everyone, this guys ninja MBA skillz justify him getting paid millions and millions of dollars for signing documents he hasn't read, making verbal and written deals that contradict each other, and failing to grasp basic legal principles understood by anyone who has seen a more than 3 episodes of 'Murder, she wrote".

    If only we had a Tardis so we could stuff the lot of them into it and send them back to meet Stalin, they deserve each other.

  9. tiggity Silver badge

    legal system

    I'm sure like a great many involving the legal profession it's easy for someone not au fait with the process (and frankly, for criminal legal proceedings that's a big chunk of the population) and under stress I can easily see them been overwhelmed with paperwork and just signing whatever their legal folk put in front of them without reading it properly.

    Stress and unfamiliarity with a process can easily make people just lapse into unthinking mode, blindly doing what they are told.

    1. Nick Kew

      Re: legal system

      Indeed.

      In this witness's case, it's not his battle, he's just been co-opted into it. He's presumably just taken a line of least resistance, letting himself be guided by the lawyers.

    2. Vincent Ballard
      FAIL

      Re: legal system

      Sure. But their lawyer should be au fait with the process, and shouldn't have put them in this kind of situation.

    3. Jim Andrakakis

      Re: legal system

      Agree in part but: that’s why they are paid big bucks, no?

  10. TRT Silver badge

    This all seems rather confusing...

    So Autonomy did something shady which increased the money the owners got from HP during a buy-out of the company?

    HP have now realised this, having now got access to the company records, and are rightly pissed-off about it?

    This leads to a court case in which... what the hell is going on?

    I'm going to have to go back and read this all again, because it starts off clear enough and then gets incredible messy. Like someone didn't get caught with their pants down, but they'd pulled them up before they had finished.

    1. Michael Wojcik Silver badge

      Re: This all seems rather confusing...

      HP have now realised this, having now got access to the company records, and are rightly pissed-off about it?

      The problem with that analysis is that many at HP, including the CFO, realized it before the deal was concluded, and objected to the deal, and Apotheker forced it through anyway. This trial isn't being held because HP "are rightly pissed-off"; it's being held because HP (specifically the board of directors) are trying to deflect blame and maybe get some money in the process. Though I don't think there's all that much available to be clawed back, compared to how much they shelled out in the first place.

      1. TRT Silver badge

        Re: This all seems rather confusing...

        Ah! That starts to make more sense now.

  11. DontFeedTheTrolls
    Facepalm

    Maybe El Reg is reporting this case in a particular light, or perhaps the Judge is getting close to throwing it out, because so far it appear the incompetence and illegality is all on HPE's side.

    1. Doctor Syntax Silver badge

      "or perhaps the Judge is getting close to throwing it out"

      I'd be surprised if that happened so early. The case is down for a long hearing so there must be many witnesses to be heard. It would be difficult to throw it out after just two. In any event I'm not sure the judge could just do that without being asked. Of course the parties could agree to settle and cut it short.

  12. Miss Lincolnshire

    I must say that as a former EDSer that was sucked up by these parasites when Hurd took us over, in another embarrassing financial shambles, I am enjoying this trial very much indeed.

    HP and its spawn since always were, and remain, an absolute shower and a beacon of grasping incompetence.

    1. MJB7

      "HP and its spawn since always were ... an absolute shower and a beacon of grasping incompetence."

      They weren't *always* an absolute shower. The engineering company set up by Bill Hewlett and Dave Packard did good things. (The joke used to be "Of course, you'd *check* for damage after an HP calculator was run over by a tank, but you wouldn't expect to find any - tank tracks are very robust.")

    2. Anonymous Coward
      Anonymous Coward

      I must say that as a former xxxxware that was sucked up by these parasites right before Carly Fiorina took us over, and including many other embarrassing financial shambles, I am enjoying this trial very much indeed.

      HP and its spawn since always were, and remain, an absolute shower and a beacon of grasping incompetence.

      2 0

  13. The Nazz

    Back to auditing, and follow the money.

    "Part of HE's case is that Autonomy secretly funnelled cash to resellers." and "Neither side appears to dispute that cash made it's way from Autonomy to resellers"

    WTF.

    Page 2 of "Double Entry Bookkeeping for Dummies" * : If in doubt whether an entry goes in as a debit or a credit, look at which side it goes in the cash/bank account and stick the other entry in the opposite side." * pre Sage, Quickbooks et al.

    Unless the cash "secretly funnelled" was off the record, from the black economy (which i very much doubt and doesn't appear to be the case) then there MUST be an entry in the cash/bank account. Cash paid out. NOT very secret. Whether the other entry is a) a loan to "Debtor A" , b) a gift/bung to a third party to buy our stuff or alternatively c) "secretive marketing expenses" doesn't really matter. Only if there are no entries made can it be fraud. Otherwise it's clearly there in black and white, for either sides Auditors/due dilligence experts to take a view upon. The audit trail starts with the cash/bank account.

    As an example, Lidl sent me a £5 off voucher if i bought £30 worth of stuff, which i did. How can that be fraudulent?

    They would have recorded it as either a) Sales/Revenue of £25 or alternatively b) Sales/Revenue of £30 and marketing expenses of £5. Same net profit either way. May well be wrong but I suspect accounting rules and auditing require the latter. Otherwise , the former would screw and REDUCE the gross margin/profitability on sales.

    HPE appear to be claiming that Autonomy overstated both sales ( ie revenue) and profitability (net revenue). Some feat.

  14. Anonymous Coward
    Anonymous Coward

    was the Dr bending space time?

    While HP were a load of loons, was the Dr bending space time?

    https://www.courtlistener.com/recap/gov.uscourts.cand.305114/gov.uscourts.cand.305114.419.0.pdf

    "Sometime in late 2008, Hussain and his co-conspirators set out to improperly inflate Autonomy’s revenue figures to influence market analysts’ projections about its growth and estimates of its market value, in the hopes of an eventual acquisition and a big payday. (Hussain netted $16 million from the HP acquisition.) In Hussain, the conspiracy also included CEO Mike Lynch, as well as Christopher “Stouffer” Egan, Peter Menell, Andy Kanter, and Steve Chamberlain, all executives at Autonom

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