Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 1 of 19
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`
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`Christopher Morvillo (Admitted Pro Hac Vice)
`Jonathan M. Baum (SBN: 303469)
`Celeste L. Koeleveld (Admitted Pro Hac Vice)
`Steptoe LLP
`Daniel S. Silver (Admitted Pro Hac Vice)
`One Market Street
`Clifford Chance US LLP
`Steuart Tower, Suite 1070
`31 West 52nd Street
`San Francisco, CA 94105
`New York, NY 10019
`Telephone: (510) 735-4558
`Telephone: (212) 878-3437
`jbaum@steptoe.com
`christopher.morvillo@cliffordchance.com
`
`
`Reid H. Weingarten (Admitted Pro Hac Vice)
`Attorneys for Defendant
`Brian M. Heberlig (Admitted Pro Hac Vice)
`Michelle L. Levin (Admitted Pro Hac Vice)
`Michael Richard Lynch
`Nicholas P. Silverman (Admitted Pro Hac Vice)
`
`Dwight J. Draughon (Admitted Pro Hac Vice)
`
`Drew C. Harris (Admitted Pro Hac Vice)
`
`Steptoe LLP
`
`1114 Avenue of the Americas
`
`New York, NY 10036
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`Telephone: (212) 506-3900
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`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`
`
`
` Case No.: 3:18-cr-00577-CRB
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`UNITED STATES OF AMERICA,
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`
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`
`
`MICHAEL RICHARD LYNCH and
`STEPHEN KEITH CHAMBERLAIN,
`
`
`
`Plaintiff,
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`
`
`vs.
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`
`
`Defendants.
`
`Judge: Hon. Charles Breyer
`
`DEFENDANT MICHAEL RICHARD
`LYNCH’S OPPOSITION TO
`GOVERNMENT’S MOTION IN LIMINE
`NO. 1 (ASL RESTATEMENT AND
`SUMMARY CHART)
`
`(Government MIL No. 1)
`
`Date: February 21, 2024
`Time: 2:00 pm
` Court: Courtroom 6 – 17th Floor
` Date Filed: January 31, 2024
` Trial Date: March 18, 2024
`
`
`
`
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`Defendant Lynch’s Opp. to Government MIL No. 1 (ASL Restatement and Summary Chart)
`3:18-cr-00577-CRB
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 2 of 19
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`TABLE OF CONTENTS
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`SUMMARY OF ARGUMENT .................................................................................................... v
`MEMORANDUM OF POINTS AND AUTHORITIES ............................................................ 1
`I. The Court Should Not Admit the ASL Restatement ......................................................... 1
`A.
`The ASL Restatement Is Inadmissible Under Fed. R. Evid. 402 and 403 ....................... 1
`B.
`The ASL Restatement Is Inadmissible Hearsay ............................................................... 2
`II. Even if the ASL Restatement Is Admissible, the Proposed Testimony of Yelland and
`Anderson Is Inadmissible ............................................................................................................. 4
`III. The Summary Chart (TX 2749) Is Inadmissible ................................................................ 6
`A.
`TX 2749 Is Inadmissible Under Fed. R. Evid. 1006 and Fed. R. Evid. 403 .................... 6
`1.
`TX 2749 Is Not Based on Disclosed, Admissible Evidence ......................................... 7
`2.
`TX 2749 Does Not Fairly Represent the Underlying Materials and Instead Engages in
`Inferences, Advocacy, and Pedagogy ........................................................................... 9
`The Unfair Prejudice and Waste of Time Caused by TX 2749 Substantially
`Outweighs Its Probative Value ................................................................................... 10
`TX 2749 Should Not Be Permitted as a Demonstrative During Testimony .................. 11
`B.
`CONCLUSION ........................................................................................................................... 11
`
`
`3.
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 3 of 19
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`TABLE OF AUTHORITIES
`
`
`
`
`
`Page(s)
`
`Cases
`
`Abascal v. Fleckenstein,
`820 F.3d 561 (2d Cir. 2016).......................................................................................................3
`
`Ake v. GM Corp.,
`942 F. Supp. 869 (W.D.N.Y. 1996) ...........................................................................................2
`
`Campbell v. Nordco Prods.,
`629 F.2d 1258 (7th Cir. 1980) ...................................................................................................4
`
`Davis & Cox v. Summa Corp.,
`751 F. 2d 1507 (9th Cir. 1985) ..............................................................................................7, 9
`
`EEOC v. UMB Bank Fin. Corp.,
`558 F.3d 784 (8th Cir. 2009) .....................................................................................................2
`
`Grant v. Lockett,
`No. 19-469, 2021 WL 5816245 (2d Cir. Dec. 8, 2021) .............................................................2
`
`In re Homestore.com, Inc.,
`No. 01-cv-11115, 2011 WL 291176 (C.D. Cal. Jan. 25, 2011) .............................................4, 5
`
`Icon Enters. Int'l, Inc. v. Am. Prod. Co.,
`No. 04-cv-1240, 2004 WL 5644805 (C.D. Cal. Oct. 7, 2004) ..................................................8
`
`Millenkamp v. Davisco Foods Int’l, Inc.,
`562 F.3d 971 (9th Cir. 2009) .....................................................................................................3
`
`MSP Recovery Claims Series LLC v. Farmers Ins. Exchange,
`Nos. 22-55610, 22-55613, 2023 WL 6633838 (9th Cir. Oct. 12, 2023) ...................................3
`
`Northrop Corp. v. Triad Int’l Marketing, S.A.,
`842 F.2d 1154 (9th Cir. 1988) ...................................................................................................7
`
`In re Taco Bell Wage & Hour Actions,
`No. 07-cv-1314, 2016 WL (E.D. Cal. Apr. 8, 2016) .................................................................7
`
`United States v. Graham,
`No. 13-cr-37, 2013 WL 6383169 (D. Mont. Dec. 5, 2013) .................................................9, 10
`
`United States v. Hussain,
`No. 16-cr-462, Dkt. 340 (N.D. Cal. Apr. 16, 2018) ......................................................... passim
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 4 of 19
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`
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`United States v. Hussain,
`No. 19-10168, 2019 WL 6248137 (9th Cir. Nov. 15, 2019) .....................................................1
`
`United States v. Johnson,
`594 F.2d 1253 (9th Cir. 1979) ...............................................................................................7, 9
`
`United States v. Rizk,
`660 F.3d 1125 (9th Cir. 2011) ...................................................................................................7
`
`United States v. Salman,
`No. 11-cr-625 (N.D. Cal. Sept. 3, 2013), Dkt. 188 ....................................................................9
`
`United States v. Wood,
`943 F.2d 1048 (9th Cir. 1991) ...................................................................................................9
`
`Other Authorities
`
`Fed. R. Evid. 402 ................................................................................................................... passim
`
`Fed. R. Evid. 403 ................................................................................................................... passim
`
`Fed. R. Evid. 702 .................................................................................................................. iii, iv, 6
`
`Fed. R. Evid. 703 ....................................................................................................................... iv, 5
`
`Fed. R. Evid. 802 ........................................................................................................................... iii
`
`Fed. R. Evid. 803 .........................................................................................................................2, 3
`
`Fed. R. Evid. 1006 ................................................................................................................. passim
`
`3 Wharton’s Criminal Evidence (15th ed.) .....................................................................................9
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 5 of 19
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`SUMMARY OF ARGUMENT
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`In November 2012, HP publicly accused Dr. Lynch and others of accounting fraud and
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`referred them to numerous agencies for prosecution. Over one year later in January 2014, HP
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`restated subsidiary Autonomy Systems Ltd.’s (ASL) 2009-2010 financial statements. As part of
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`a carefully orchestrated plan, HP used the ASL Restatement to claim that HP’s November 2012
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`accounting fraud accusations had been proven correct.
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`On January 17, 2024, Dr. Lynch moved to exclude the ASL Restatement and hypothetical
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`opinion testimony about what a restatement of ASL’s parent company (the Autonomy Group)
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`would or should have looked like. Simultaneously, the government moved to admit the ASL
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`Restatement and opinion testimony from two witnesses, Christopher Yelland and Antonia
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`Anderson, neither of whom it has noticed as an expert. The government further moved to admit
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`TX 2749, an exhibit it previously described as a summary of “the adjustments. . . of improper
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`transactions that Mr. Yelland believes should have been [made] to Autonomy’s accounts to
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`conform with IFRS, as well as the amount of undisclosed hardware revenue,” based on (1) a
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`similar document “that Morgan Lewis put together,” and (2) a list of “particular transactions”
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`that the U.S. Attorney’s Office “would like the summary to reflect [an] adjustment for.”1 The
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`government’s motion lacks merit and should be denied.
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`The Court should exclude the ASL Restatement under Fed. R. Evid. 402, 403 and under
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`Fed. R. Evid. 802, 702, and the Confrontation Clause. As to Fed. R. Evid. 402, 403, the ASL
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`Restatement is fundamentally irrelevant and will confuse and mislead the jury, creating the risk
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`of unfair prejudice. The ASL Restatement is HP’s opinion of what ASL’s financial statements
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`should have said, but HP did not receive or review those ASL financial statements when
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`deciding whether to purchase Autonomy. As to Fed. R. Evid. 802, 702, and the Confrontation
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`Clause, the ASL Restatement is classic hearsay created in anticipation of litigation. It was based
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`
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`1 Compare Def. Lynch’s Mot. to Excl. the 2014 Filing of ASL’s 2011 Annual Report (Dkt. 293) (Lynch MIL No. 2);
`Def. Lynch’s Mot. to Excl. Opinion Test. of Christopher Yelland (Dkt. 294) (Lynch MIL No. 3), with Gov’t Mot to
`Admit Evidence of ASL’s Restatement and Related Summary Charts (Gov’t MIL No. 1); Ex. 2 to Decl. of Nicholas
`Silverman in Supp. Lynch MIL No. 3 (Dkt. 294-4), at 2.
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 6 of 19
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`not on routine, reliable audit work by experts but instead on the out-of-court investigation of
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`Morgan Lewis and PwC. Rather than record and disclose that investigation, HP has suppressed
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`it and even invoked privileges that concede the investigation’s nexus to anticipated litigation,
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`leaving Dr. Lynch unable to cross-examine the sources of the allegations contained in the ASL
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`Restatement.
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`Even if the Court found that the ASL Restatement was an admissible business record, the
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`proposed testimony of Yelland and Anderson would be inadmissible hearsay and opinion
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`testimony. The government does not explain under what theory Yelland and Anderson would be
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`allowed to testify to their opinions that (1) IFRS and UK accounting standards required
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`adjustments to the revenue recognition for individual transactions—when no individual
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`transactions are identified in the ASL Restatement itself; (2) many of the underlying transactions
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`lacked a commercial purpose—when that opinion is based on Morgan Lewis and PwC’s
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`unrecorded interviews of third-party witnesses and similar unconfronted hearsay; and (3) the
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`same adjustments should have been made to the financial statements of Autonomy Group, even
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`though Yelland and HP have repeatedly argued no such adjustments were required, and that it
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`would be impossible to reliably calculate the adjustments because of competing accounting
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`standards and transfer pricing ambiguities. The government provides no argument for why these
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`opinions would be admissible, and they are not. The opinions are not contained in the ASL
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`Restatement, and neither Yelland nor Anderson has been noticed as an expert to testify to
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`opinions. Any noticed opinions would undoubtedly be inadmissible under Fed. R. Evid. 702,
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`and the hearsay repeated by Yelland or Anderson would be inadmissible under Fed. R. Evid. 703
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`and the Confrontation Clause.
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`Finally, the chart drafted by HP lawyers at the instructions of the government prosecutors
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`is inadmissible, as the Court held in United States v. Hussain. Order ¶ 3, No. 16-cr-462, Dkt.
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`340 (N.D. Cal. Apr. 16, 2018). The government cites Fed. R. Evid. 1006, a rule that permits
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`introduction of summaries that fairly represent admissible writings so voluminous they cannot be
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`examined in court. Rule 1006 has no application here. As its title states, the chart does not
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`summarize documents but instead summarizes “Revenue Adjustments – 2009 to October 2011.”
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`Dkt. 295-1 at 4, 17. The government has not disclosed the documents containing those
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`“Revenue Adjustments”; the underlying materials cited by the government do not explain the
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`bases for adjustments. That is because HP has invoked privilege and refused to disclose the
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`materials that underlie ASL’s revenue adjustments. Even if the government’s citation were
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`correct, many of the cited materials are not admissible—they include newspaper articles, a
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`memorandum evaluating MicroLink transactions citing a Morgan Lewis interview and PwC, and
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`non-business record email exchanges among lawyers—and that alone precludes admission under
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`Fed. R. Evid. 1006. Setting aside the failure to meet any other of Rule 1006’s elements, the
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`proffered chart is inadmissible because it is a pedagogical aid that advocates for the
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`government’s preferred inferences instead of neutrally setting forth the contents of the
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`underlying documents. Even if the government remedied all of these Rule 1006 failings, the
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`chart would be inadmissible due to its capacity to waste time and cause unfair prejudice. The
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`government will be able to argue for some of these inferences during its closing argument; it is
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`not entitled to offer an exhibit that does so.
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 8 of 19
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`The Court Should Not Admit the ASL Restatement
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`For the reasons explained in Section II of Lynch MIL No. 2, the ASL Restatement is
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`inadmissible. The ASL Restatement relates to financial statements that were never reviewed
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`during the acquisition of Autonomy and is nothing more than a litigant’s accusation for the
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`purposes of supporting litigation. It is irrelevant, confusing, misleading, and inadmissible under
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`Fed. R. Evid. 402 and 403. Moreover, the ASL Restatement is inadmissible hearsay.
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`A.
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`The ASL Restatement Is Inadmissible Under Fed. R. Evid. 402 and 403
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`The government argues that the ASL Restatement (1) “is an admission by ASL that its
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`revenues (and therefore Autonomy Corporation plc’s revenues) were misstated”; (2) is
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`“probative of the falsity of Defendants’ statements”; and (3) is “probative of. . . the magnitude of
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`the correction.” Gov’t MIL No. 1 at 5. The government is wrong on each argument.
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`First, the ASL Restatement is not an admission; it is a litigant’s accusation. The
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`government’s inability to understand the distinction between admission and accusation
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`demonstrates that a jury would be confused and misled by the ASL Restatement and that it is
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`therefore inadmissible under Fed. R. Evid. 403.
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`Second, Dr. Lynch made no statements about ASL’s financials and the ASL Restatement
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`does not contradict any statements made by Dr. Lynch. It has no bearing on the truth or falsity
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`of his statements.
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`Third, the ASL Restatement contains only evidence of the magnitude of the correction of
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`ASL’s profit and revenue, not the magnitude of any hypothetical corrections to other statements
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`that were never calculated or made. To the contrary, HP and Yelland asserted that no such
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`corrections were necessary and that they could not be calculated reliably.
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`At bottom, the ASL Restatement is a sideshow. The restatement was not a material part
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`of the government’s proof in United States v. Hussain. See Br. for the United States as Appellee,
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`United States v. Hussain, No. 19-10168, 2019 WL 6248137, at *56-58 (9th Cir. Nov. 15, 2019)
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`(arguing that any error in admitting the ASL Restatement was harmless beyond a reasonable
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`doubt based on the Court’s comment that the jury would have convicted “no matter the Court’s
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 9 of 19
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`evidentiary rulings”). The ASL Restatement risks significant prejudice and wrongful conviction
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`based on confusion between ASL and Autonomy Group, misrepresentations of the document as
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`an admission, and the suppression of the source information for the ASL Restatement through
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`HP’s repeated claims that such information is privileged work product prepared in anticipation of
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`litigation. It should be excluded.
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`B.
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`The ASL Restatement Is Inadmissible Hearsay
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`On each element of Fed. R. Evid. 803(6), the government’s argument lacks merit for the
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`reasons stated in Lynch MIL No. 2, which Dr. Lynch hereby incorporates herein and does not
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`repeat. The government’s argument to the contrary is wrong on each of the three key prongs of
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`Fed. R. Evid. 803(6).
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`First, Jasper applies only to restatements offered as business records of post-transaction
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`accounting reviews, not to business records of transactions. Here, the ASL Restatement is a
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`record of transactions, not a record of an accounting review. See, e.g., Grant v. Lockett, No. 19-
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`469, 2021 WL 5816245, at *2 (2d Cir. Dec. 8, 2021) (Summary Order) (holding that Citizen
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`Review Board’s findings were not a business record because the “investigation” did not occur at
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`or near the time of the underlying events that it described); EEOC v. UMB Bank Fin. Corp., 558
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`F.3d 784, 792-93 (8th Cir. 2009) (“Although Johnson created the notes contemporaneously with
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`her 2004 interview of Hawkins, she did not create the notes at or near the time Hawkins
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`interacted with Graves in 2002. … we have difficulty finding that [those notes] fit[] within the
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`Rule 803(6) exception.”). If the ASL Restatement was a record of an accounting review, it
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`would describe that review, its processes, and how it reached conclusions. See e.g., Abascal v.
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`Fleckenstein, 820 F.3d 561, 565 (2d Cir. 2016) (holding that report based on interviews failed
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`contemporaneity requirement because the interviews did not take place near the time of the
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`“underlying events” and report occurred six months late); Ake v. GM Corp., 942 F. Supp. 869,
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`877-78 (W.D.N.Y. 1996) (holding that report submitted to federal agency evaluating defendant’s
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`auto design culpability was not a business record because it was not a record made “at or near the
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`time of the event” at issue); Michael H. Graham, 7 Handbook of Fed. Evid. § 803:6 (9th ed.)
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`(phrasing the relevant question before the court as “Was this record made at or near the time of
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 10 of 19
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`the matter recorded?”). The ASL Restatement does none of that. Instead, it summarizes
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`financial metrics derived from transactions that occurred years earlier and in which the preparer
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`of the ASL Restatement was uninvolved. The ASL Restatement was not prepared at or near the
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`time of the transactions by those with knowledge, but rather prepared years later by people
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`relying on Morgan Lewis and PwC descriptions of interviews of Autonomy employees. Lynch
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`MIL No. 2 § II.A.
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`Second, the government has also failed to lay the foundation that the accounting review
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`was a “regularly conducted activity” of Autonomy as required by Fed. R. Evid. 803(6)(B) or that
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`the process of restating previous years’ results was “a regular practice of that activity” as
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`required by Fed. R. Evid. 803(6)(C). The regularity requirement has been described as requiring
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`a “routine, attended by some notion of ‘standard operating procedures’. . . that are followed
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`frequently in recurrent situations.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
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`Evidence § 8:78 (4th ed.). It is not satisfied by a one-time investigation relying on arguments
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`from litigation counsel crafted to support a party’s legal position. See id. (“Records made for
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`purposes of pending litigation should usually be excluded [because] the very fact that they are
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`prepared for litigation means that they are not the product of business routine.”); MSP Recovery
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`Claims Series LLC v. Farmers Ins. Exchange, Nos. 22-55610, 22-55613 , 2023 WL 6633838, at
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`*1 (9th Cir. Oct. 12, 2023) (documents created for purposes of litigation incorporating third-
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`party data and discovery are “not records ‘kept in the course of a regularly conducted activity’”)
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`(citation omitted); see also Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 980 (9th Cir.
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`2009) (holding that a nutritionist’s letter was not a business record because it was “generated in
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`anticipation of litigation, rather than as part of a regular business practice”); Abascal, 820 F.3d at
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`565-66 (“[I]nterpreting survey results and. . . interviews and then creating a summary of the
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`findings. . . is a far cry from the simple act of recording observable information—the type of
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`regularly conducted activity envisioned by this exception.”). The investigation that led to the
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`ASL Restatement was a novel response to a unique problem and was not a “regular practice” of a
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`“regularly conducted activity” as required by Fed. R. Evid. 803(6).
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`Third, the government relies on a false narrative to argue the ASL Restatement’s
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`Defendant Lynch’s Opp. to Government MIL No. 1 (ASL Restatement and Summary Chart)
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 11 of 19
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`“trustworthiness,” completely ignoring that Morgan Lewis, PwC, and litigation considerations
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`drove the ASL Restatement’s contents. Regardless of whether ASL was required to file an
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`annual financial statement, the circumstances explained in Lynch MIL No. 2 § II.C (Dkt. 392)2
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`render the ASL Restatement—a document that voluntarily levies attacks at former management
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`and leverages litigation arguments to restate transaction contrary to contemporaneous evidence—
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`untrustworthy. See Campbell v. Nordco Prods., 629 F.2d 1258, 1264-65 (7th Cir. 1980)
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`(affirming ruling that a company’s post-accident submission to the FAA lacked trustworthiness
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`because of the company’s motive to blame the defendant instead of itself). HP was motivated to
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`blame Autonomy, and using the work of Morgan Lewis and PwC, that is precisely what HP did.
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`That accusation is not sufficiently trustworthy to meet the business records exception and should
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`be excluded.
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`II.
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`Even if the ASL Restatement Is Admissible, the Proposed Testimony of Yelland and
`Anderson Is Inadmissible
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`Even if the ASL Restatement is a business record, the proposed testimony of Yelland and
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`Anderson is inadmissible. See In re Homestore.com, Inc., No. 01-cv-11115, 2011 WL 291176,
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`at *6 (C.D. Cal. Jan. 25, 2011) (admitting restatement as a business record but excluding report
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`explaining the need for the restatement as hearsay). The government proposes to have Yelland
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`and Anderson describe their opinions that IFRS and UK accounting standards required adjusting
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`the revenue recognition on numerous individual transactions. Gov’t MIL No. 1 at 4-5. Based on
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`their testimony in Hussain, this will likely include hearsay about the opinions of Morgan Lewis
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`and PwC investigators that the relevant transactions lacked a commercial purpose. Then, the
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`government proposes to have Yelland and Anderson describe their opinions that these
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`2 The government addresses only one of those circumstances, ignoring the ongoing litigation efforts that drove the
`ASL Restatement, HP’s need to back up its 2012 accusations or face potential securities fraud liability from the
`SEC, Yelland and Anderson’s reliance on arguments from litigation counsel, and the use of hindsight to contradict
`contemporaneous evidence. Lynch MIL No. 2 § II.C. Instead, the government focuses on the refusal of any auditor
`to sign off on the ASL Restatement’s accuracy. Gov’t MIL No. 1 at 7. But the government ignores the
`disagreement of Deloitte, and ignores EY’s core objection that it had not obtained “the information” or
`“explanations” it considered necessary to substantiate the accuracy of the ASL Restatement. Regardless of EY’s
`position, the auditor in the best position to consider contemporaneous evidence disputed the methodology and
`opinions in the ASL Restatement emphasizing that it was improperly substituting hindsight analysis for
`contemporaneous evidence. Dkt. 293-11.
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`4
`Defendant Lynch’s Opp. to Government MIL No. 1 (ASL Restatement and Summary Chart)
`3:18-cr-00577-CRB
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 12 of 19
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`adjustments “impacted. . . Autonomy Corporation plc’s financial statements” prepared under
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`IFRS. Id. Neither set of testimony is contained within the ASL Restatement and each is
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`inadmissible.
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`In Homestore (a case relied upon by the government), the court admitted the restatement
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`as a business record of an accounting investigation because the SEC imposes a duty to restate
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`incorrect financial statements. Id. at *5. However, the court then granted a motion to exclude
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`the underlying counsel-drafted report with contents nearly identical to the proposed
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`Yelland/Anderson testimony. The report described interviews of Homestore employees,
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`summarized Homestore transactions, and summarized the reasons for Homestore’s restatement
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`of revenues associated with specific transactions. Id. at *6. Even though the report was offered
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`to explain the reasoning of business record (the restatement), the Court held that it was not itself
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`a business record. Id. The court opined that the compilation of documents, interviews, and
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`rationales was “not just a regular audit report”; was not made in the normal, regular course of
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`business; and was not trustworthy. Id. at *6-7. The facts here present an even clearer case: the
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`government is not offering a contemporaneous explanation of out-of-court statements and
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`opinions that can be reviewed by all parties. Instead it is offering unconfronted third-hand
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`hearsay received from litigation counsel and their agents arguing factual conclusions that would
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`support litigation efforts.
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`The government barely addresses the testimony it proposes to admit. The bulk of the
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`government’s argument is spent on the ASL Restatement itself, and the argument for admitting
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`the proposed testimony is relegated to a footnote arguing that Yelland’s and Anderson’s
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`proposed testimony is “also admissible under Rules 702 and 703 governing testimony by expert
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`witnesses.” Gov’t MIL No. 1 at 7 n.3. But the government has not disclosed either witness as an
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`expert as required by Rule 16, and the proposed opinion testimony is therefore inadmissible.
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`Lynch MIL No. 3 § II.B (Dkt. 294). Even if the government did comply with Rule 16, the
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`proposed opinions are inadmissible under Fed. R. Evid. 702, 403, 802, 703, and the
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`Confrontation Clause. Id. § II.C-.E.
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`As Yelland stated in real time, he is not an expert on IFRS and relied on others for that
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`5
`Defendant Lynch’s Opp. to Government MIL No. 1 (ASL Restatement and Summary Chart)
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 13 of 19
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`analysis. Lynch MIL No. 3 § II.C (collecting instances in which Yelland disclaimed expertise
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`and noted his reliance on PwC or others). HP and Yelland used the Morgan Lewis/PwC
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`investigation and their resulting arguments placing blame on Dr. Lynch and others. Beginning in
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`2012, Morgan Lewis and PwC interviewed witnesses in unrecorded sessions, built narratives,
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`and ultimately fed those narratives to Anderson and Yelland. Defendant Lynch’s motion to
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`exclude the ASL Restatement (Lynch MIL No. 2) provides a particularly on-point example in
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`which Morgan Lewis and PwC developed an argument that a sale to FileTek should not have
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`been recognized. Id. § I (citing Dkt. 293-8). This argument was based on hindsight and
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`unrecorded interviews, and PwC conceded that it was contrary to contemporaneous documentary
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`evidence. Id. Anderson nonetheless adopted that argument wholesale, pasting it into a
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`memorandum authored by a team led by Yelland. Id. (citing Dkt. 293-9). At trial, Yelland then
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`testified that “our inquiries” revealed that the FileTek revenue should not have been recognized.
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`Id. (citing Hussain Tr.). In effect, he smuggled in hearsay collected by lawyers without
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`attribution—giving Hussain no opportunity to cross examine the hearsay’s source or test the
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`veracity of the assertions. That is the evidence that the government seeks to admit, and the Court
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`should deny that request.
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`The proposed expert and hearsay testimony not contained within the ASL Restatement’s
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`text should be excluded regardless of whether the ASL Restatement is received into evidence.
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`III. The Summary Chart (TX 2749) Is Inadmissible
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`In Hussain, the Court held that the summary charts proffered by the government are
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`inadmissible. Order re: Various Trial Motions ¶ 3, Hussain, Dkt. 340 (granting defense motion
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`to exclude the summary chart as substantive evidence but permitting use as a demonstrative).
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`The Court was correct. The charts plainly fail to meet the requirements of Fed. R. Evid. 1006
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`and are inadmissible. Moreover, because the charts are misleading and were used as a script by
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`the witness, they should not be used as a demonstrative in this trial.
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`A.
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`TX 2749 Is Inadmissible Under Fed. R. Evid. 1006 and Fed. R. Evid. 403
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`A litigant may offer a summary chart of writings that are so voluminous, that a chart is
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`the “only practicable means of making their contents available to judge and jury.” Fed. R. Evid.
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`6
`Defendant Lynch’s Opp. to Government MIL No. 1 (ASL Restatement and Summary Chart)
`3:18-cr-00577-CRB
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`Case 3:18-cr-00577-CRB Document 308 Filed 01/31/24 Page 14 of 19
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`1006 adv. comm. note (1972) (