People v. Eubanks, H011751

CourtCalifornia Court of Appeals
Citation44 Cal.Rptr.2d 846,38 Cal.App.4th 114
Decision Date08 September 1995
Docket NumberNo. H011751,H011751
PartiesPreviously published at 38 Cal.App.4th 114, 42 Cal.App.4th 1297, 47 Cal.App.4th 158 38 Cal.App.4th 114, 42 Cal.App.4th 1297, 47 Cal.App.4th 158, 95 Cal. Daily Op. Serv. 7172, 95 Daily Journal D.A.R. 12,201 The PEOPLE, Plaintiff and Appellant, v. Gordon EUBANKS et al., Defendants and Respondents.

Page 846

44 Cal.Rptr.2d 846
Previously published at 38 Cal.App.4th 114, 42 Cal.App.4th 1297, 47 Cal.App.4th 158
38 Cal.App.4th 114, 42 Cal.App.4th 1297, 47 Cal.App.4th 158,
95 Cal. Daily Op. Serv. 7172,
95 Daily Journal D.A.R. 12,201
The PEOPLE, Plaintiff and Appellant,
Gordon EUBANKS et al., Defendants and Respondents.
No. H011751.
Court of Appeal, Sixth District, California.
Sept. 8, 1995.

Rehearing Denied Sept. 29, 1995.

Review Granted Dec. 14, 1995.

Page 847

[42 Cal.App.4th 164] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Michael D. O'Reilley and Eugene W. Kaster, Deputy Attys. Gen., for appellant.

Gil Garcetti, Dist. Atty., Los Angeles County, George M. Palmer and Shirley S.N. Sun, Deputy Dist. Attys., for amicus curiae in support of appellant.

Morgan, Ruby, Schofield, Franich & Fredkin and Allen Ruby, San Jose; Remcho, Johansen & Purcell and Robin B. Johansen and Charles C. Marson, San Francisco; Nolan & Armstrong and Thomas J. Nolan, Palo Alto, for respondents.

Peter A. Chang, Jr., Santa Cruz and Vicki I. Podberesky, Santa Monica, for amici curiae in support of respondents.

ELIA, Associate Justice.

Gordon Eubanks and Eugene Wang were charged by indictment with felonies involving the alleged theft of trade secrets from Borland International, a commercial developer of computer programs. During pretrial proceedings the defendants learned that Borland (1) had retained an attorney who had previously worked for the district attorney of Santa Cruz County in the investigation of the alleged crimes, and (2) had paid certain of the expenses of the criminal investigation. The trial court granted the defendants' motion to disqualify, or "recuse," the entire office of the district attorney. The district attorney and the Attorney General appeal. (Pen.Code, § 1424.) We conclude that the recusal order exceeded the trial court's discretion and reverse the order.

42 Cal.App.4th 165


Wang had been a Borland vice president. In July 1992 he had expressed dissatisfaction with a management reorganization and threatened to resign. On September 1, 1992, Wang submitted his resignation, effective on that day. Borland learned that Wang intended to go to work immediately for Symantec Corporation, a direct competitor of Borland's. Prompted by information that Wang had been using Borland's electronic mail to communicate with Eubanks, the president and chief executive officer of Symantec, Borland reviewed its E-mail files and found several messages between Wang and Eubanks which contained what Borland believed were Borland trade secrets.

Page 848

Borland contacted local police to investigate the possibility of theft of trade secrets. (Pen.Code, § 499c.) Police enlisted the assistance of an investigator and an attorney from the office of the district attorney. Concerned that evidence would be destroyed if Wang or Eubanks became aware that an investigation had begun, police and district attorney representatives worked with Borland officials through the night of September 1 to prepare affidavits for warrants to search Symantec's headquarters and the residences of Wang and Eubanks.

In the early morning hours of September 2, the district attorney's representatives asked Borland officials whether Borland could provide computer specialists "to assist us in searching ... the computers that we expected to encounter" at Symantec and elsewhere. Borland was unwilling to send its own specialists because it did not want to place itself in the position of obtaining access to Symantec's trade secrets. The district attorney had no employee with the necessary computer expertise. His representatives asked whether Borland could help identify one or more independent experts to assist in the search, and Borland, through its outside attorneys, promptly located a computer specialist named Klausner who was available to assist. The district attorney's investigator was concerned about the cost of independent experts, and asked Borland officials whether Borland "would be in a position to assist us by providing the expert at their cost." The officials led the investigator to understand that Borland could pay up to $10,000, "and, if need be, more," for this purpose.

Once the search warrants were issued, Klausner accompanied the representatives of several law enforcement agencies who executed the warrant for Symantec's headquarters on September 2. The record does not make clear exactly what Klausner did; it indicates only that he was "utilized ... for a short period of time in reviewing the computer or computer terminal ... [42 Cal.App.4th 166] located on ... Eubanks' desk." Klausner's services were completed on September 2, and on September 3 Klausner's firm submitted a bill for $1,400 directly to Borland. Borland paid Klausner's bill on September 14.

The district attorney's investigator located a second computer specialist, Strawn, who had worked with the district attorney's office on other occasions. Strawn participated in the search at Symantec and thereafter continued to work on the investigation for several weeks. His role apparently was to operate the several computers that law enforcement officers had found. Where necessary he was to recover electronic files that had been deleted from the computers' file directories, in order to call the files to the computer screens so that the officers could determine the relevance of the files.

In the latter part of September the district attorney's investigator asked a Borland official whether "Borland was still willing to assist us by carrying the cost of the technicians that were necessary to process this case." The official said that Borland was willing.

At some point the proposal that Strawn be paid by Borland was brought to the attention of the district attorney, Arthur Danner. After considering the proposal, Danner determined that Strawn's work would be technical and that he would not be asked for an opinion as to whether any of the material he had recovered was a trade secret. In addition, according to Danner, "we were experiencing serious budgetary constraints in a particular fund that we utilize to pay professional and special witnesses and we really had very little money in our budget...." After ascertaining that Strawn had not retrieved any material that was "that significant in terms of a potential trial," Danner approved submission of the invoice to Borland. Subsequently, Strawn submitted an invoice to the district attorney's office for $9,450 for "examination of computers and related materials...." The district attorney's office forwarded the invoice to Borland, which paid it.

In the course of the investigation Borland employees were interviewed and the interviews audiotaped. At some point late in 1992 Borland agreed to pay to have the audiotapes transcribed. Borland ultimately made payments of $1,008 and $1,224 to a reporting service which transcribed the audiotapes.

Page 849

Danner did not learn of Borland's payments to Klausner and to the reporting service until after the fact. Mike Bartram, the assistant district attorney assigned to prosecute the Eubanks-Wang case, had been made aware of the proposal to ask Borland to make payments and apparently had opposed it, primarily because he thought "that might affect a jury." It appears that Bartram was not informed of the actual payments until considerably after the fact.

[42 Cal.App.4th 167] Strawn submitted a second invoice, for work done after October 1992 on the Eubanks-Wang investigation, but apparently that invoice was never paid. Altogether Borland paid a total of $13,082 directly to providers of services in the investigation.

The grand jury indicted Eubanks and Wang at the end of February 1993, and the defendants were arraigned on the indictment on March 5.

A recent law school graduate named Rivers was working for the district attorney's office as a law clerk in September 1992. Two to three weeks after the search warrants were executed, Rivers was assigned to assist Bartram with the Eubanks-Wang case. Initially he did legal research on the case; later he participated in the investigation. Rivers was admitted to the California bar in December 1992. Thereafter he worked for the district attorney's office as a contract attorney until March 1993.

Borland had filed a civil action against Symantec, arising out of the Eubanks-Wang episode, on September 3, 1992, the day after the initial search warrants were executed. In March 1993, after the indictments were returned and at about the time of the arraignment, Borland discussed with Rivers the possibility that he might work for them on the pending civil action. Rivers mentioned this possibility to Bartram, who told Rivers that if he went to work for Borland, Rivers and Bartram would be unable to discuss the case. Bartram also counseled Rivers to explore possible conflict-of-interest issues with the State Bar. Borland was similarly concerned that the ethical aspects of the proposal to retain Rivers be worked out. Rivers did consult the State Bar and he also researched the ethical issues. On March 17, 1993, Rivers resigned from the district attorney's office and was retained as a private attorney by Borland to work on the civil action against Symantec "and relat[ed] issues and potentially another case ... and some business things." Rivers did not work for the district attorney's office thereafter.

In May 1993 counsel for defendants Eubanks and Wang moved to recuse the entire office of the district attorney on the ground that Rivers had accepted "private employment by an accuser in a pending prosecution." The motion came to hearing in July 1993. In the course of the hearing the defendants became aware of Borland's payments to Klausner, Strawn, and the reporting firm. Thereafter the defendants urged that Borland's payments be considered a separate ground for recusal, and the issue was then fully...

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  • People v. Eubanks, S049490
    • United States
    • United States State Supreme Court (California)
    • 14 d4 Dezembro d4 1995
    ...Appellant, v. Gordon EUBANKS et al., Respondents. No. S049490. Supreme Court of California. Dec. 14, 1995. Prior report: Cal.App., 44 Cal.Rptr.2d 846. Respondents' petition for review Application to file portion of petition for review under seal is granted pending further order of this cour......

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