October 1, 2006 12:55 PM PDT
HP, red-faced but still selling
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Hurd's modest demeanor came into play again at the congressional hearing on Thursday when he deployed it to defuse anger about privacy invasions by company-hired detectives, all of whom refused to testify and invoked their Fifth Amendment right against self incrimination.
Hurd took a big risk by volunteering to appear at the congressional inquiry--any missteps at the hearing could haunt him personally, professionally and legally--but his advisers said he figured that owning up to well-publicized mistakes was a better path to follow than hiding. He also asked to appear alone at the witness table, something that the company's crisis consultants counseled against because it meant that he would probably be hit with more questions.
"It was Mark's decision; he's taken the position that he needs to take responsibility for what went wrong," said Michael J. Holston, a lawyer with Morgan, Lewis & Bockius, which is representing the company before the various state and federal investigators. "He concluded that he didn't have anything to hide so he got up there and answered all their questions."
Hurd also was not represented by a personal lawyer, a point he made sure that members of Congress--and the throng of reporters covering the event--noted.
As it turned out, Hurd never encountered a fusillade of hostile questions from the committee. Congressional ire was aimed, instead, at Patricia Dunn, who as HP's chairwoman had instigated the investigation and tracked its details, according to documents given to investigators. (Dunn recently resigned from the board, and Hurd assumed her duties.) But Dunn did not accept any responsibility for the company's actions and repeatedly said she could not recall or could not remember meetings, e-mail messages and memos related to HP's wide-ranging snooping. Some members of Congress were less than impressed by her.
"It showed that she was not credible," said Rep. Edward Whitfield, the Kentucky Republican who is chairman of the House subcommittee.
Yet Hurd was fuzzy on the details, too, raising the classic questions that arise in any scandal, corporate or political: What did he know and when did he know it? Despite the lingering ambiguity surrounding Hurd's role in HP's snooping, his name appears on only eight of some 20,000 pages of documents that the company has turned over to Congress, the California attorney general, and the United States Attorney's Office so far, , according to people who have examined most of those documents.
One of the stronger pieces of evidence that linked Hurd to the spying project was a March 10 draft report of the operations that HP's investigators prepared for certain company executives. Hurd acknowledged receiving the report, but said he never read it. "It was not my finest hour, Mr. Chairman," he replied to Whitfield's questions about how he could have missed references to such things as surveillance, obtaining a reporter's cell phone records and installing tracer software on a reporter's computer.
Those references appear on the third and fourth pages of the 18-page report. While the reference to the legality of obtaining cell phone records was noted only in a footnote, a reference in the text of the report to a "covert intelligence gathering operation" would seem harder to miss. Hurd testified that he did not approve the use of the tracer software, which covertly pinpoints the Internet address of anyone who opens the document online. He said he had not ruled out the future use of such software in possible criminal investigations of fraud or theft perpetrated against the company. But according to people close to him, Hurd has forbidden its use on reporters.
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