Criminal defense lawyer to represent Mesa CFO

Peter Murnane is alleged to have erased data that could have been used in court

Peter Murnane, the Mesa Air Group chief financial officer accused by Hawaiian Airlines of destroying court evidence, has hired prominent Hawaii criminal defense attorney Brook Hart to independently represent him.

Murnane is alleged by Hawaiian to have erased and manipulated data that could have been used by Hawaiian in its lawsuit against Mesa, which will be heard in a non-jury trial before Bankruptcy Judge Robert Faris beginning Tuesday in Honolulu.

Hawaiian is suing Mesa for allegedly using confidential information it had seen as a potential investor during Hawaiian's bankruptcy in deciding to enter the Hawaii market on its own. Hawaiian, which filed the suit in February 2006, is seeking unspecified damages and injunctive relief.

Since Mesa began service on June 9, 2006, it has been in the forefront of a pricing war that has seen interisland prices drop as low as $1 one way.

Mesa claims it relied on publicly available information to enter the Hawaii market and that Hawaiian never has proven Mesa misused Hawaiian information.

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Mesa Air Group's chief financial officer, accused by Hawaiian Airlines of deleting court evidence from at least three computers and a portion of a network server, has hired prominent Hawaii criminal defense attorney Brook Hart to independently represent him.

Peter Murnane is alleged by Hawaiian to have erased and manipulated data that could have been used by Hawaiian in its lawsuit against Mesa, which will be heard beginning Tuesday in a Bankruptcy Court trial in Honolulu.

Hart is the attorney representing Adam Mau-Goffredo, the accused killer of three people at Tantalus on July 6 of last year.

Hawaiian is suing Mesa for allegedly breaching a confidentiality agreement the Mesa had signed as a potential investor during Hawaiian's bankruptcy, and using that confidential information in Mesa's planning and decision to enter the Hawaii market as new interisland carrier go! Hawaiian, which filed the suit in February 2006, is seeking unspecified damages and injunctive relief.

Hawaiian also is suing GCW Consulting, which is headed by Mo Garfinkle, a former Hawaiian consultant who later served as a consultant for Mesa and allegedly had access to one of the Mesa computers with the proprietary information.

In addition, Hawaiian recently filed a sanctions motion asking the court to grant a default judgment against Mesa for Murnane's alleged destruction of critical evidence that "substantially prejudices Hawaiian in proving its case." That motion will be heard by Bankruptcy Judge Robert Faris before the start of Tuesday's non-jury trial.

"If this court does not grant default judgment against Mesa, it should enter an order that (Mesa) misused Hawaiian's evaluation material and that such misuse was a substantial factor in Mesa's decision to enter the interisland market," the motion said.

Since Mesa began service as go! on June 9, 2006, it has been in the forefront of a pricing war that has seen interisland prices drop as low as $1 one way. Hawaiian and Aloha Airlines, which offered similar promotions to remain competitive, have lost millions of dollars in revenue due to the money-losing fares.

Aloha has sued Mesa separately for using proprietary information gathered as a potential investor in Aloha, as well as alleged predatory pricing designed to run Aloha out of business. That trial is scheduled for next year.

Mesa has argued that Hawaiian never has proven Mesa misused Hawaiian information. Mesa claims that it relied on publicly available information to enter the Hawaii market.

Murnane's retention of a criminal defense attorney might indicate that Mesa is trying to distance itself from Murnane or that Murnane might be facing separate penalties.

Attorney Robert Marks, the Hawaii counsel for Mesa, said in a declaration filed Tuesday that the Assistant Disciplinary Counsel at the Hawaii Office of Disciplinary Counsel said Murnane should be advised to seek legal independent counsel.

Murnane retained Hart as his attorney, and Hart subsequently advised Murnane not to give sworn testimony to Mesa's counsel in response to the allegations raised by Hawaiian's motion for sanctions.

Murnane, Hart, Marks, and Jonathan Ornstein, chairman and chief executive of Mesa, all declined to comment yesterday.

Hawaiian Airlines General Counsel Hoyt Zia said "the court filings speak volumes about Mesa's actions. We are looking forward to our day in court."

In its sanctions motion, Hawaiian said Murnane "provided false and misleading testimony" after Hawaiian filed its motion last year for preliminary injunction, which eventually was denied. Hawaiian also said Murnane misused documents long after the time he claimed they were destroyed and sought to "cover his tracks by, among other things, destroying and manipulating data on his office computers. This activity included backdating the clocks on those computers."

Hawaiian said that Chris Pappaioanou, Mesa's in-house counsel, sent an e-mail to Murnane on Feb. 14, 2006, -- the day after Hawaiian filed the lawsuit -- instructing Murnane to "preserve any and all documents" that may be related to the complaint, including e-mails and electronic documents.

"To the extent the filing of the lawsuit had not already done so, the notice from Mr. Pappaioanou put Mr. Murnane on full notice of his obligations to preserve any documents that might be relevant," the sanctions motion said.