In the wake of the Hewlett-Packard "scandal," corporate boards and their advisors are scurrying about in order to try and avoid future, similar difficulties. In principle, the advice is simple: engage in full and frank discussions, but leave outside contact to a spokesperson or the CEO. In the event of a leak by a board member, discuss (and do so in advance), and if necessary apply some pressure by reminding board members of the possibility that their "disclosures" will amount to civil or criminal violations of the securities laws, or pointing out that renomination to the board is unlikely for someone who can not kep confidences. The advice usually extends to referring the matter to the general counsel or outside counsel, with little advance work on what exactly will happen if the matter is not respolved in this manner.
But of course reasonable board members might disagree as to what things ought to be disclosed or not. And reasonable people might also disagree about how far to go in uncovering the source of leaks. Missing in the H-P coverage is discussion of these matters - and of the somewhat offsetting problem that leaks will further encourage corporate insiders to nominate close friends and allies, rather than fresh voices, to the board. The first two grounds for disagreement are related. If a board-member honestly believes that it is in the interest of the corporation for something to become known, even though the CEO, or a majority of the board, thinks not, the dissenting board member might well be treated by the law as an investigative reporter or whistle-blower. On the other hand, if dissenters are seen, after the fact, as destructive of value or, more interesting, as loose cannons who are regarded as socially costly even though a particular loose cannon may be in the right, then the corporation might get much more protection that the media seem to think (in the H-P case) in investigating the source of the leak. If viewed this way, the investigation would certainly justify "pretexting," although specific statutes might limit the investigators when it affected phone records or other matters that might have acquired special legal protection.
One way around some of the legal difficulties associated with investigation, would be for board members to agree in advance that in the event of leaks or other triggers, the corporation would be entitled to look into their phone records and other private matters if in the opinion of X (the general counsel, perhaps, or a special committee, or an outside lawyer employed for this purpose), such investigation was appropriate. In turn, perhaps, the CEO might waive some privacy rights in order to facilitate internal investigations in the event of some allegations.