August 11, 2011 6:57 PM

K&L Gates Lawyer Defends Man Charged in Case of Lost iPhone

Posted by Hannah D'Apice

California authorities have hit two Golden State men with misdemeanor charges for selling an Apple iPhone 4 prototype the pair found in a bar to a popular technology blog in the spring of 2010.

San Mateo County district attorney Stephen Wagstaffe announced the criminal complaints against Brian Hogan, 22, of Redwood City, and Sage Wallower, 28, of Emeryville, Wednesday. Hogan and Wallower are both charged with one count of misappropriation of lost property. Wallower faces an additional charge of possession of stolen property. Prosecutors must still ask a grand jury to indict the men, San Mateo assistant district attorney Morley Pitt said.

Hogan and Wallower discovered the mobile phone prototype in March 2010 after it was left at a Redwood City bar by an Apple engineer. The technology blog Gizmodo.com purchased the prototype for $5,000 and published a detailed review of it months before Apple was set to share the device publicly.

Wednesday’s statement indicated that the authorities do not plan to press charges against Gizmodo and its employees, including Jason Chen, the blogger who published the review. According to Pitt, filing charges against Gizmodo or Chen would potentially create a conflict between California’s penal code and the state’s shield law, which protects the confidentiality of journalists’ sources.

"This was not the right case to fight that battle,” Pitt told The Am Law Daily in a telephone interview Thursday.

Apple did not return a call requesting comment.

Hogan is represented by K&L Gates partner Jeffrey Bornstein. Prior to joining the firm, Bornstein served nearly 20 years in the criminal and civil divisions of the U.S. Attorney's Office for the Northern District of California in San Francisco.

Bornstein declined to comment on how he came to represent Hogan. He emphasized in a written statement provided via e-mail that his client had never before been in trouble with the law. “Although we do not believe that charges of any kind should have been filed, Brian fully accepts responsibility for his actions,” he wrote in the statement.

Information about who represents Wallower was not immediately available. Hogan and Wallower are scheduled to be arraigned on the charges on August 25. If convicted, each faces up to a year in jail, Pitt said.

Gawker Media, parent company of Gizmodo, tapped First Amendment specialist Thomas Burke of Davis Wright Tremaine for legal counsel when the scandal first broke. Chen retained Thomas Nolan, Jr., of the Palo Alto criminal defense boutique Nolan, Armstrong & Barton.

In response to Wednesday’s announcement, Gawker Media issued a statement saying it was pleased with  Pitt's decision. “We are glad that we can finally put this matter behind us,” the company said.

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