Arik Hesseldahl

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Hurd Loses Appeal to Keep Accuser’s Letter Confidential

Former Hewlett-Packard CEO and current Oracle president Mark Hurd has lost an appeal before a court in Delaware in which he sought to keep confidential a letter that contained allegations of sexual harassment. That means that at least a partially redacted version of the letter concerning Jodie Fisher, a onetime HP marketing contractor, and her relationship with Hurd, will ultimately be made public, though it wasn’t clear exactly when that will be. The court ruled Wednesday.

Hurd had intervened in a shareholder lawsuit against HP earlier this year, in which an HP investor, Ernesto Espinoza, sought to make public both the Fisher letter and a report documenting the results of an internal investigation conducted by HP’s board of directors. Espinoza had argued that shareholders are entitled to read them in order to investigate possible corporate wrongdoing and waste arising from the relationship and Hurd’s subsequent resignation, including the terms of Hurd’s severance package from HP.

“In the Court of Chancery, documents filed in a court proceeding are public records unless a party seeking confidentiality demonstrates ‘good cause,’” the court’s opinion reads, referring to the Delaware court where the case began. “The Court of Chancery decided that the intervenor” — referring to Hurd — “did not establish good cause to maintain the confidentiality of the letter. We agree and affirm.”

The court had earlier ruled that the internal HP report conducted by the law firm Covington & Burling will remain confidential.

The eight-page letter, dated June 24, 2010, was addressed to Hurd and was written by Jodie Fisher’s attorney, Gloria Allred. Hurd turned the letter over to HP’s then-general counsel, Michael Holston, who then turned the matter over to HP’s board of directors. An internal investigation exonerated Hurd of the sexual harassment claims; it found instead inconsistencies with expense reports that came to light in the course of the investigation that violated its business conduct. The finding prompted Hurd to resign on Aug. 6, 2010.

Hurd denied having an inappropriate relationship with Fisher, and after leaving HP, he joined rival Oracle as co-president.

At least some of the letter’s contents are known, in broad brushstrokes. Last year, The Wall Street Journal reported that the letter contains allegations that Hurd told Fisher of HP’s then-secret plan to acquire EDS at a meeting in Madrid in March of 2008. HP announced and ultimately completed a $13.9 billion deal to acquire EDS in May of that year. HP never disclosed that particular claim in the letter, but it provided information to federal regulators about the circumstances of Hurd’s departure. Fisher and Hurd have both said, without elaborating, that the letter contained many inaccuracies. They reached a private settlement of the matter on Aug. 4, 2010, two days before HP announced Hurd’s resignation.

Shortly after Hurd’s resignation, Espinoza, an HP shareholder, wrote to Holston demanding to see the letter and other records from HP’s investigation of the matter, claiming he wanted to look into alleged corporate wrongdoing and waste arising from the relationship and Hurd’s subsequent resignation. Hurd and Fisher both balked at the attempt, and advised HP that it was confidential. HP initially agreed to furnish a copy to Espinoza, on the condition that he keep it confidential as an accommodation to Hurd. Espinoza finally sued in November of 2010, and the letter has remained under seal since then.

A judge in a lower court ruled in March that the letter should be made public, prompting the appeal by Hurd.

The higher court essentially agreed with the decision of the lower court: “First, although it was marked ‘Personal and Confidential,’ the Allred letter was sent to Hurd in his capacity as CEO of HP, at the company’s address,” the decision reads. “Second, the letter stated that Fisher’s claims were against Hurd and HP. Third, the substance of Fisher’s claims was widely reported in virtually every media. Finally, although the letter goes into embarrassing detail about Hurd’s behavior, it does not describe any intimate conversations or conduct. In sum, we conclude that the Court of Chancery acted well within its discretion in holding that the Allred letter (as redacted) should be unsealed.”

A spokeswoman for Oracle had no comment on the ruling. A spokesman for HP declined to comment. A spokesman for Hurd had no comment.

The court’s full decision is below:

hurd-delware-supremecourt


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— Ryan Chittum, writing in the Columbia Journalism Review about the promise of Pierre Omidyar’s new media venture with Glenn Greenwald