eDiscovery case study

1. Qualcomm to pay over $18,000,000 for E-Discovery
Violations- Counsel Sanctioned, May 2008
Qualcomm, Inc. was ordered to pay
$9,259,985.09 in attorneys’ fees and related
costs, as well as post-judgment interest on the
final fee award of $8,568,633.24 at 4.91%
accruing from August 6, 2007 and referred
six sanctioned attorneys to the California
State Bar for disciplinary proceedings after
Qualcomm withheld tens of thousands of
responsive documents in discovery.
Qualcomm filed a patent infringement action
against Broadcom Corporation in October 2005.
When the case was tried in January 2007,
Broadcom learned during cross-examination that
a Qualcomm witness had received highly
relevant emails that had never been produced in
discovery.
By June 2007, Qualcomm located more than
300,000 highly relevant emails and pages that
were initially requested but never produced. The
court found, “Qualcomm could not have
achieved this goal without some type of
assistance or deliberate ignorance from its
retained attorneys. Accordingly, the Court
concludes it must sanction both Qualcomm and
some of its retained attorneys.”
U.S. District Judge Rudi M. Brewster, found
that Qualcomm’s “counsel participated in an
organized program of litigation misconduct and
concealment throughout discovery, trial, and
post-trial.”
Magistrate Judge Barbara L. Major drew “the
inevitable conclusion” that Qualcomm
intentionally withheld these documents “to win
this case and gain a strategic business
advantage.” She chastised Qualcomm’s
“talented, well-educated, and experienced
lawyers” for failing to make reasonable inquiry.
The court also concluded, “if Bier (a Qualcomm
attorney), as a junior lawyer, lacked the
experience to recognize the significance of the
document, then a more senior or knowledgeable
attorney should have assisted him. To the extent
that Patch (a senior Qualcomm attorney) was
supervising Bier in this endeavor, Patch
certainly knew or should have recognized the
importance of the document from his
involvement in Qualcomm’s motion practice
and trial strategy sessions.” David A. Soley,
Portland, ME, Cochair of the Section’s Trial
Practice Committee advises that “lawyers will
be held responsible for their clients’
production of documents.”
The Court also ordered, “Qualcomm and the
Sanctioned Attorneys to participate in a
comprehensive Case Review and Enforcement
of Discovery Obligations (“CREDO”) program.
This is a process 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, to evaluate and test the alternatives, and
ultimately, to create a case management protocol
which will serve as a model for the future.”
“The Qualcomm decision reminds all
litigators—in a very forceful way—of the
serious obligations we undertake in
responding to discovery,” says Erica L.
Calderas, Cleveland, Cochair of the Section of
Litigation’s Pretrial Practice and Discovery
Committee.
Researched by:
Sal Velasco, CISSP, CISA, CISM
http://www.linkedin.com/in/salvelasco