The federal criminal case against two former eBay employees accused of stalking and harassing a Natick couple ignited a debate on Friday over how high up in the company the alleged 2019 conspiracy reached.
Jim Baugh, eBay’s former senior director of safety and security, and David Harville, former director of global resiliency, are charged with conducting a bizarre campaign targeting Ina and David Steiner, who produced an online newsletter covering the e-commerce industry that had drawn the ire of eBay’s then-chief executive, Devin Wenig.
According to the criminal complaint, Baugh is alleged to have masterminded a plot that included sending the couple threatening messages, having a bloody pig’s-head mask and live spiders delivered to their home, and traveling to Natick to spy on the couple. Five people who worked for Baugh and Harville were also charged, but their superiors, including Wenig, were not.
Attorneys for Baugh and Harville are seeking to force eBay to turn over notes from interviews in two internal investigations with Baugh’s direct boss, former senior vice president Wendy Jones; former CEO Wenig; and others who have not been charged. Those could be useful to the defense if they showed higher-ups approved the campaign or offered some legal rationale for the actions.
By contrast, the company previously disclosed to the government Baugh’s and Harville’s interviews with its inside attorneys. And alleged misstatements from those interviews were cited in witness tampering charges.
Lawyers for eBay “made what we understand to be a pretty far-reaching [PowerPoint] presentation to avoid prosecution, turn over Mr. Baugh and his subordinate, and somehow let the CEO and the C-suite executives skate with the government,” William Fick, an attorney for Baugh, argued at a virtual hearing Friday before US District Judge Patti Saris.
But a lawyer for eBay at the hearing said the company wasn’t hiding anything and shouldn’t have to turn over more interviews. The company was not “trying to skew or conceal or use this privileged information in a way that was otherwise misleading,” Jack W. Pirozzolo said.
Assistant US Attorney Seth Kosto said the government never asked eBay what top executives such as Wenig said during the company’s internal investigations. The company offered to discuss what Baugh and Harville had said in their interviews.
Under Justice Department policy, prosecutors are not to ask companies to waive attorney-client privilege for materials like the eBay interviews when conducting an investigation, though companies can voluntarily surrender protected materials.
“We did not ask eBay what Miss Jones or Mr. Wenig said in their interviews with eBay investigators,” Kosto replied in questioning from Judge Saris. The government had obtained e-mails and other materials from eBay involving Wenig and Jones, he said.
Fick, Baugh’s lawyer, pressed the argument.
“Frankly, I find it astonishing for the government to say here in this hearing they never asked those pointed questions or asked for the fruits of those interviews,” he said.
Saris didn’t rule on the request at the hearing. The judge did set a preliminary date of May 31 for the start of a jury trial in the case.
She also said she was unlikely to grant motions from lawyers for Baugh and Harville to dismiss charges of witness tampering as being insufficient under the applicable laws. But she said she needed to consider further a request to throw out the tampering charges because the conduct occurred in California while prosecutors brought their case in Massachusetts.
Baugh and Harville were among seven people criminally charged in 2020 for allegedly stalking and harassing the Steiners. Baugh and Harville are fighting the charges while the other five people, who worked for them, all pleaded guilty.
Former CEO Wenig was asked to resign by eBay after the harassment campaign came to light. In one message Wenig sent to a subordinate, he wrote “take her down,” in reference to Ina Steiner. Wenig has said he did not know about or approve of the harassment of the Steiners. He departed the company in September 2019 with a severance package worth $57 million.
Aaron Pressman can be reached at firstname.lastname@example.org. Follow him on Twitter @ampressman.