Hot Topics for Trial Lawyers
A compilation of journalistic articles to keep you abreast of changing developments and current events in the litigation realm. If you are interested in writing for this Hot Topics segment, email tnuckols@texasbar.com
Attorneys Beware - E Discovery Sanctions
Posted 3/18/08 Alistair Dawson, Beck Redden & Secrest, L.L.P.The Judge in the Qualcomm, Inc. v. Broadcom Corp case referred several lawyers to the California Bar Association to determine what sanctions should be imposed against them for failing to produce several thousand emails. The lawyers were also ordered to participate in an educational program to “identify the failures in the case management and discovery protocol utilized by Qualcomm and its in-house and retained attorneys in this case, to craft alternatives that will prevent such failures in the future.” The Judge also awarded $8.5 million in attorney fees.
The story: Qualcomm brought a patent infringement suit against Broadcom. One of the issues in the case was the extent to which Qualcomm had participated in a joint video team project with other companies. If it could be proven that Qualcomm had participated in this project, then Qualcomm would not have been able to assert its patent claims against Broadcom. Broadcom issued several discovery requests asking for documents relating to Qualcomm’s participation. Qualcomm took the position—and even had a corporate representative testify—that it had not participated in this project during a time period that was critical to the lawsuit.
While preparing a witness for trial, one of Qualcomm’s outside counsel discovered 21 emails showing that Qualcomm had participated in the joint video team project. Incredibly, Qualcomm’s counsel made the decision not to produce these documents, despite their clear relevance to the case and the fact that they had been requested. Worse - Qualcomm put the witness on the stand and allowed him to testify. Not surprisingly, the existence of the 21 emails was revealed on cross-examination. The revelation of these led the trial judge to conduct further investigation. Ultimately, Qualcomm was forced to admit and acknowledge that it “had thousands of relevant unproduced documents and that their review of these documents “revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm’s behalf at trial.” When the investigation was over, Qualcomm “searched the email archives of twenty-one employees and located more than forty-six thousand documents (totaling more than three hundred thousand pages), which had been requested but not produced in discovery.”
While this case involved a number of very poor decisions made by counsel for Qualcomm, it nevertheless underscores the importance of having a comprehensive system to search for, preserve and produce relevant emails and other electronic documents.
Another interesting issue in this case is that Qualcomm was ordered to pay the $8.5 million sanction even though there was very little, if any, direct evidence that the company had participated in the decisions that led to the failure to produce the documents. The court determined that Qualcomm was obviously aware that it had participated in the video project and it either knew that its trial counsel was taking a contrary position - or the court charged Qualcomm with such knowledge. In any event, the court was not willing to let the company put the blame on its outside counsel.
A copy of the ‘Order Granting In Part And Denying In Part Defendant’s Motion For Sanctions And Sanctioning Qualcomm, Incorporated And Individual Lawyers’ can currently be viewed on Westlaw. In many respects, it is road map of what not to do if you want to avoid discovery sanctions.