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by the wayside.
    A guard showed Gupta and Naftalis and his two associates into the testimony room. Despite his rumpled appearance, Naftalis is one of the most celebrated white-collar defense attorneys in New York. The Wall Street Journal referred to him as “the Zelig of the white-collar bar: He’s everywhere.” He has represented everyone from former Walt Disney Company chief Michael D. Eisner to Wall Street hotshot Kenneth Langone. Like many defense lawyers, Naftalis spent six years at the US attorney’s office for the Southern District of New York (the district that made Rudy Giuliani’s career). He rose to be deputy chief of the Criminal Division before going into private practice. Naftalis had accompanied clients to interviews like this one innumerable times. He knew the script by heart and was a skilled performer inside a conference room, a pro’s pro.
    A few minutes after Gupta and his legal team settled in the room, Sanjay Wadhwa, Jason Friedman, and another SEC attorney, John Henderson, entered. Wadhwa was a little taken aback to find Gupta and his lawyers already seated. Typically, the SEC attorneys arrived before the witnesses to control the order of seating. Witnesses being deposed are usually ushered to seats facing the window so they can relax and be more loquacious. Having a guard escort the group in earlier, the wily Naftalis instructed his client to sit next to him with their backs to the window.
    Naftalis greeted Henderson warmly, asking the young SEC lawyer about his holiday plans and his two-and-a-half-year-old son. Before joining the SEC, Henderson, a Yankees fan, had worked at Naftalis’s law firm, Kramer Levin Naftalis & Frankel. He’d sat three hundred yards from Naftalis, a big Mets fan. After the usual introductory pleasantries—Gupta gave Wadhwa a half smile when they shook hands—the witness was sworn in. Wadhwa found Gupta controlled and inscrutable. If he was irritated by the SEC’s invitation to testify, he didn’t let on. As Henderson launched into the SEC interrogation, Wadhwa kept an eye on Gupta to see if he was showing signs of nervous body language or looking shifty. He didn’t betray a thing.
    “Mr. Gupta, are you taking any medication or drugs that would affect your ability to recall events or answer truthfully?”
    “No,” Gupta replied.
    Then Henderson drilled into the heart of the case. He first asked whether Gupta reviewed any documents in preparation for his testimony.
    “Upon advice of the counsel, I respectfully decline to answer the question at this time based on my right under the United States Constitution not to be compelled to be a witness against myself,” Gupta replied.
    “There are different ways to formulate that,” Henderson said. He spoke formally yet awkwardly, clearly surprised by Gupta’s response. He told Gupta that if he wanted to assert his privilege against self-incrimination, “you need merely state that you refuse to answer on the grounds that it may incriminate you. In other words, you are not compelled to answer questions if you believe that a truthful answer to the question would tend to show that you committed a crime, and you wish to assert your privilege against self-incrimination.”
    Henderson asked Gupta if he understood what he was telling him. Gupta fell back on the elaborate response he’d offered moments earlier, one that the savvy Naftalis had coached him to give.
    Naftalis then asked to go off the record.
    A few minutes later, Henderson summarized the point of discussion for the stenographer on the record: “For the sake of efficiency…we can agree that if you say ‘I take the Fifth,’ or ‘Five,’ it will mean ‘Based on my Fifth Amendment privilege against self-incrimination I decline to answer the question.” Henderson looked to Naftalis. “Gary, is that an acceptable formulation for you?”
    “I don’t like that formulation.” Naftalis understood how damning “I take the Fifth” would be for Gupta in the