“Nobody’s Head Rolled”: Discovery Error Explained in Trial of Former McAfee General Counsel

The criminal prosecution against McAfee’s former general counsel related to options backdating — derailed briefly when relevant emails were suddenly produced by prosecutors on the eve of trial — resumed Thursday.  Robert Gooding Jr., the partner who headed law firm Howrey’s internal investigation into backdating at McAfee, said the omission was the result of contract lawyers at Howrey marking the emails “not relevant” during a document review.

Although U.S. District Judge Marilyn Hall Patel stated on Wednesday that “heads will have to roll” as the result of the error, The Recorder reported that on Thursday she simply ordered Howrey to supply declarations detailing how the computer discovery system worked.  “OK, nobody’s head rolled,” Patel said.

Howrey’s Gooding apologized to the court, stating that the error was not deliberate and that “In a document production this size, these things do happen.” Apparently unconvinced, counsel for McAfee’s former general counsel proclaimed the document review to be “one of the most irresponsible searches in history.”

Read The Recorder article