Court Order: Infosys Whistleblower Free to Cooperate with Feds

Don Tennant

As the discovery process in Jay Palmer's visa fraud lawsuit against Infosys ramps up, the Indian IT services provider has filed a motion for a court order to prevent the public disclosure of proprietary or confidential company information. The protective order that Infosys recommended was granted, but with a caveat: that nothing in the order could preclude Palmer from providing information to the grand jury or to the federal agencies conducting the criminal investigation of Infosys.


Infosys filed the motion seeking the protective order on Monday in the U.S. District Court for the Middle District of Alabama, where the trial is slated to begin in late August. According to Palmer's attorney, Kenny Mendelsohn, filing such an order is a legitimate and fairly routine procedure, a means of ensuring that personal employee information and proprietary company information are not made public in the course of the discovery process. But there was a problem with the version of the order that Infosys was recommending, and Mendelsohn immediately objected to it. I spoke with him last night, and he explained why:

I objected to it on the grounds that Mr. Palmer is cooperating with a grand jury and several federal agencies, and we felt obligated [to point out] that during the course of this, if we uncover more information about visas or other crimes, we have the duty to report it. The judge agreed, and he added a paragraph that authorizes Jay to testify about any matters he learns about in front of a grand jury, or to provide it to law enforcement agencies.

That paragraph reads as follows:

However, nothing in this order shall be construed as prohibiting the plaintiff from providing truthful testimony before a grand jury, or giving truthful information to legitimate law enforcement investigative authorities.

With that caveat added, the order was filed yesterday. Mendelsohn made it clear that none of this means Infosys can claim confidentiality to avoid providing him with the documents he seeks in the discovery process:

It means that they still produce the documents, and we're entitled to review them, but certain documents that are of a proprietary nature are not to be disclosed to the public. And I have no problem with that. It boils down to whether Infosys is going to do it in good faith, or they're going to try to say that every document they produce is confidential, because they know they don't want me to disclose some of this to the public.

If Infosys were to try to claim some sort of blanket confidentiality as a means of avoiding as much public disclosure as it can, Mendelsohn said, he could fight that by taking the matter to the judge. I asked him if he has any concerns about whether Infosys will act in good faith with respect to what it tries to keep confidential. His response:

I hope they will. They're required by the order to act in good faith, and I certainly hope they will. But I just have to wait and see. That's all I can say.

Add Comment      Leave a comment on this blog post
Dec 14, 2011 1:23 AM jake_leone jake_leone  says:

Would the confidentiality extend to anything presented at trial?  (i'll take my answer off the air.)

Dec 14, 2011 1:53 AM Chamat Chamat  says:

It means now Don will not get all those company confidential mails to put in his blog.

Not sure about the intention of doing this but this move will surely save everyone's time

Dec 14, 2011 2:13 AM Don Tennant Don Tennant  says: in response to jake_leone

Mendelsohn said discovery and trial are two different animals, and that the judge will not limit his presentation of Palmer's case based on the Protective Order.

Dec 14, 2011 5:23 AM chm chm  says: in response to Chamat

Who said so?

Whole discussion on same topic here:

Hope Don will continue his esteemed journalism and reporting doesn't matter what others call it.

Some examples on discussion:

Aug 23, 2011 10:36 AM

  R. Lawson  says in response to I have: "Palmer case is in court and he has no rights to release evidence to 3rd party (here Don) and that 3rd party has no right to release it to public without providing reasonable privacy. "

Actually, he has precisely that right:

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law . . . infringing on the freedom of the press,

Legally, he is entitled to do exactly what he has done.  If you are arguing that it is unfair and not good journalism, you are entitled to that viewpoint.  Just making sure you understand the law because from a legal perspective not only is it OK it is protected.

As far as privacy is concerned, Don redacted phone numbers, addresses, email accounts, and so forth.  He revealed the names of some managers and HR folks at Infosys but he didn't reveal private information about them other than their job title and how they relate to this story.  I don't think he did anything that isn't routine for his industry. 

Finally, this is a blog.  Although I think journalists should use good judgement in their blogs, I don't think that blogs are held to the same standards as articles.  They aren't (to my knowledge) reviewed by an editor and they aren't marketed as "news".  It's a relatively new media outlet so I think we still have much to learn here.

This is a legal case, but it is also a matter of public interest.  The outcome of this case could potentially impact the careers of IT workers across the globe in one way or another.  Of course Don should be talking about it.

If Infosys has some email that Jay sent out that backs their claims this is all for money - or some other evidence supporting their side of the argument they are free to make that public.  I'm sure Don would report that also.  I have no reason to believe such evidence exists, but if it does let's see it.  They called him a liar so they must be able to back that statement up, right?

Reply Aug 23, 2011 11:04 AM


  Don Tennant    says in response to R. Lawson: Thanks, Roy-I think you have encapsulated what needs to be understood here very well. The chronology of this also needs to be understood: Mendelsohn only started releasing documents to me for publication after Infosys publicly branded Palmer as a liar. He made it clear, as I have reported, that he will continue releasing documents until Infosys apologizes for that. Mendelsohn's aim in releasing the documents is to show that Palmer is being truthful. Anyone who thinks that what has been released so far represents anything other than a tiny fraction of the evidence that Palmer and his attorney hold is being extremely nave. Finally, I can tell you that I have reached out to Infosys both directly and through its PR firm with requests to speak with someone from Infosys, and I was ignored on both fronts.

Dec 14, 2011 11:45 AM IAmNumber813 IAmNumber813  says:

It looks like the Infosys lawyers are padding their billable hours and expense accounts before the Dec. 24 settlement.

Dec 17, 2011 1:54 AM Mark Mark  says: in response to Don Tennant

Great work keeping folks up-to-date on Infosys. Are you also following H1B problems at Cognizant?


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