Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 1 of 6
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`PATRICK D. ROBBINS (CABN 152288)
`Attorney for the United States
`Acting Under Authority Conferred by 28 U.S.C. § 515
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`MARTHA BOERSCH (CABN 126569)
`Chief, Criminal Division
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`ROBERT S. LEACH (CABN 196191)
`ADAM A. REEVES (NYBN 2363877)
`KRISTINA N. GREEN (NYBN 5226204)
`ZACHARY G.F. ABRAHAMSON (CABN 310951)
`Assistant United States Attorneys
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`450 Golden Gate Avenue, Box 36055
`San Francisco, California 94102-3495
`Telephone: (415) 436-7014
`Fax: (415) 436-7234
`Email: Robert.Leach@usdoj.gov
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`Attorneys for United States of America
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`MICHAEL RICHARD LYNCH and
`STEPHEN KEITH CHAMBERLAIN,
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`Defendant.
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`Case No. CR 18-577 CRB
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`UNITED STATES’ MOTION IN LIMINE NO. 5:
`TO ENFORCE DEFENDANTS’ RECIPROCAL
`DISCOVERY OBLIGATIONS
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`Pretrial Conference: February 21, 2024
`Trial Date: March 18, 2024
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`INTRODUCTION
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`The United States moves to enforce Defendants’ reciprocal discovery obligations. The United
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`States has complied with its discovery obligations pursuant to Rule 16 of the Federal Rules of Criminal
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`Procedure. In addition, the government confirms that it is in compliance with its Brady obligations and
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`will continue to comply with those obligations. The United States has produced voluminous discovery
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`and will continue to meet its obligations by sending out any additional relevant discovery as it becomes
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`available. For the reasons set forth below, it appears that the Defendants have not.
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`U.S. MOT. IN LIMINE RE: RECIPROCAL DISC.
`CR 18-577 CRB
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`Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 2 of 6
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`FACTUAL BACKGROUND
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`The United States brings this motion to enforce Defendants’ reciprocal discovery obligations.
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`There are three bodies of evidence of particular concern that motivate this motion: First, evidence from
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`the government’s investigation suggests that Defendants or their conspirators took documents and other
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`evidence from Hewlett-Packard at the time of their respective departures. Second, the public record of
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`related civil proceedings in the United Kingdom shows that those proceedings featured a discovery
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`corpus comprising millions of documents—none of which has been produced to the United States.
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`Third, the United States learned this month that Defendant Lynch has met with a potential witness—
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`Poppy Gustaffson—roughly 20 times in preparation for this trial. But the government has received no
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`Jencks material associated with those meetings. In fact, on January 3, 2024, both Defendants certified
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`through counsel that they had no Rule 16 discovery whatsoever to produce. See Declaration of Zachrary
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`Abrahamson in Support of United States’ Motion in Limine No. 5 at ¶ 2 (“Abrahamson Decl.”) (filed
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`herewith). As made clear in the factual descriptions below, the record calls into question the accuracy of
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`those representations.
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`A.
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`Documents or Other Evidence That Defendants or Their Conspirators Took With
`Them Upon Leaving Hewlett-Packard.
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`The government’s investigation has revealed at multiple points that Defendants and their
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`conspirators took documents and other evidence from Hewlett-Packard at the time of their departures.
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`For example, HP’s general counsel during the Autonomy investigation told the government that he
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`questioned Lynch about a “mini notebook” assigned to Dr. Lynch—a notebook that HP had not received
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`following Dr. Lynch’s departure. See Abrahamson Decl., Exhibit A at 2. As for Defendant
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`Chamberlain, the government in May 2016 interviewed Chris Chan, a former Autonomy IT manager
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`based in the United Kingdom. Chan told the government that upon Chamberlain’s spring 2012
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`departure from the company, Chan received Chamberlain’s Autonomy laptop and made a back-up copy
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`of the device, per the company’s policies at the time. See Abrahamson Decl., Exhibit B at 4. Shortly
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`thereafter, Chan told the government that he had a meeting with Andy Kanter, formerly Autonomy’s
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`chief operating officer. Kanter told Chan that he had a separate copy of Chamberlain’s laptop—and that
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`Chan should wipe both the remaining physical device and the copy that Chan had prepared. Chan
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`U.S. MOT. IN LIMINE RE: RECIPROCAL DISC.
`CR 18-577 CRB
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`Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 3 of 6
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`complied.
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`In another example, an associate of Defendant Lynch told the government that she used to
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`provide Hewlett-Packard documents to Hussain well after his exit from the company. Those remarks
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`came from Vanessa Colomar, initially a friend of Dr. Lynch’s wife who went on to join Autonomy’s
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`communications team around the time of HP’s acquisition. In a 2022 meeting with government
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`investigators, Colomar described interactions with Defendant Lynch after the HP acquisition. Defendant
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`Lynch, Colomar said, kept a cupboard in his office for Autonomy-related documents that he retained
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`after departing HP. Colomar told the government that she witnessed Dr. Lynch retrieve documents from
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`the cupboard on multiple occasions in or around 2014. Relatedly, in another meeting with the
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`government, Colomar said that defense witness and former Autonomy finance staffer Lisa Harris would
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`send Colomar spreadsheets for her to print for Lynch’s co-conspirator Hussain. See Abrahamson Decl.,
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`Exhibit C at 9.
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`Defendants have produced none of these materials.
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`B.
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`Evidence That Defendants May Have Obtained Through Civil Proceedings in the
`United Kingdom.
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`In addition to evidence that may reside on Chamberlain’s laptop, the United States has particular
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`concerns regarding evidence that Defendants may have received through civil proceedings in the United
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`Kingdom. As this Court well knows, successors to Hewlett-Packard brought civil fraud claims against
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`Defendant Lynch and Sushovan Hussain in the United Kingdom that reached resolution in May 2022.
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`Those multi-year proceedings generated a discovery corpus comprising millions of electronic documents
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`(36,000 of which made their way into the “trial bundle” for the 93-day English proceeding).1 Yet not
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`one of those documents has been produced to the United States pursuant to Defendants’ Rule 16
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`obligations.
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`C. Jencks Material Associated With Defense Witness Poppy Gustaffson.
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`In addition to the categories described above, the government has concerns about statements by
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`defense witness Poppy Gustaffson. Gustaffson serves as Chief Executive Officer of Darktrace, a British
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`cybersecurity company seed-funded by Defendant Lynch’s venture capital fund. Last fall, Defendant
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`ACL Netherlands BV v. Lynch, [2002] EWHC 1178 (Ch) (May 17, 2022), 2022 WL 01557021.
`U.S. MOT. IN LIMINE RE: RECIPROCAL DISC.
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`CR 18-577 CRB
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`Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 4 of 6
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`Chamberlain sought this Court’s permission to conduct a pretrial deposition of Gustaffson in London.
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`That deposition is presently scheduled for January 25, 2024.
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`In anticipation of Gustaffson’s deposition, the government learned from Gustaffson’s lawyer that
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`lawyers for Defendant Lynch had spoken with Gustaffson on close to 20 occasions. See Abrahamson
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`Decl. at ¶ 3. What’s more, just yesterday, Gustaffson’s counsel produced to the government a log of
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`communications involving Gustaffson and Defendant Lynch’s lawyers from the time of the U.K. fraud
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`trial. See Abrahamson Decl., Ex. D. That log shows that Defendant Lynch’s lawyers exchanged more
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`than a dozen e-mails with Gustaffson in connection with her witness statement in that matter. Indeed,
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`the log suggests that Lynch’s agents to a significant degree drafted Gustaffson’s statement, attaching
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`“revised draft witness statement[s]” dated November 12, November 14, and November 15, 2018. Id.
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`But notwithstanding that extensive history of communications and meetings, the government has
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`received no records of prior witness statements consistent with defense obligations under Rule 16.
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`LEGAL STANDARD
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`Rule 16 of the Federal Rules of Criminal Procedure sets forth discovery obligations of both the
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`government and of the defendant. The defense’s reciprocal obligations are identified in Rule 16(b),
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`which provides that, if a defendant requests disclosure under a different part of Rule 16, then the defense
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`must make available evidence it controls and intends to use “in the defendant’s case-in-chief at trial.”
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`FED. R. CRIM. P. 16(b)(A)(1)(ii). Moreover, it is well-settled that this Court may exclude evidence that a
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`defendant failed to produce pursuant to his discovery obligations. FED. R. CRIM. P.16(d)(2) (“the court
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`may . . . prohibit the party from introducing the undisclosed evidence”); see also Taylor v. Illinois, 484
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`U.S. 400, 414-15 (1988) (upholding trial court’s exclusion of witness testimony for defendant’s failure
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`to comply with discovery request); United States v. Scholl, 166 F.3d 964, 972 (9th Cir. 1999) (court’s
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`exclusion of checks that defendant failed to produce during discovery was not an abuse of discretion).
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`This Court should exercise its discretion to order this remedy here if Defendants attempt to introduce
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`any evidence that they have failed to produce in violation of Rule 16(b).
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`As for witness statements, Rule 26.2 makes clear that defendants have obligations paralleling
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`those of the government under the Jencks Act. Specifically, the rule provides that a party calling a
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`witness must, upon the government’s request and after that witness testifies, produce “any statement of
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`U.S. MOT. IN LIMINE RE: RECIPROCAL DISC.
`CR 18-577 CRB
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`Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 5 of 6
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`the witness that is in their possession and that relates to the subject matter of the witness's testimony.”
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`FED. R. CRIM. P. 26.2(a). Generally, parties and courts strive for pre-testimonial disclosure in order to
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`avoid trial continuances that would waste the jury’s time.
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`ARGUMENT
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`As described above, information obtained during the Autonomy investigation suggests that
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`evidence relevant to Defendants’ cases-in-chief may have reached them through various channels.
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`Indeed, by virtue of the related U.K. proceedings and devices retained following Defendants Lynch and
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`Chamberlain’s exits from HP, the defense may be sitting on voluminous materials whose contents are
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`unknown to the government. Yet the government has received no reciprocal discovery productions from
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`the defense to date. At this late stage, permitting the defense to spring undisclosed evidence on the
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`government at trial would prejudice the government and disrupt the trial presentation with tiresome
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`evidentiary disputes. Therefore, the government submits this motion to exclude any evidence offered by
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`the Defendants at trial that they failed to produce prior to trial in violation of their reciprocal discovery
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`obligations.
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`Finally, any defense attempt to evade its discovery obligations (or its obligation to disclose
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`witnesses and exhibits) on the grounds that the defendant would be “rebutting” the government’s case is
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`inappropriate. Only the government has the right to a rebuttal case, not the Defendants. The defense’s
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`case-in-chief is its “rebuttal” opportunity. Lying-in-wait to spring discovery (or witnesses, and/or
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`exhibits) until after the government rests, based on the assertion of a “rebuttal” argument, is improper,
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`prejudicial, and risks delaying the trial. In the interest of judicial economy and efficiency, the Court
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`should require the Defendants to provide the appropriate discovery well in advance of trial. If a
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`Defendant attempts to introduce as evidence items that should have been produced pursuant to the
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`Defendant’s discovery obligation, the government will object to the admission of such evidence.
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`CONCLUSION
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`For these reasons, the Court should grant the government’s motion in limine.
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`Case 3:18-cr-00577-CRB Document 300 Filed 01/17/24 Page 6 of 6
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`DATED: January 17, 2024
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` PATRICK D. ROBBINS
` Attorney for the United States Attorney
` Acting Under Authority Conferrred by
` 28 U.S.C. § 515
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`By:
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`/s/ Zack Abrahamson
`ROBERT S. LEACH
`ADAM A. REEVES
`KRISTINA N. GREEN
`ZACHARY G.F. ABRAHAMSON
`Assistant United States Attorneys
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`U.S. MOT. IN LIMINE RE: RECIPROCAL DISC.
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