Lessons from Qualcomm

Lessons from Qualcomm

The litigation community was rocked in January when Magistrate Judge Barbara Major of the United States District Court for the Southern District of California, in the case of Qualcomm Inc. v. Broadcom, Inc. (No. 05cv1958-B), entered an order imposing sanctions of $8.5 million against the plaintiff and its counsel, and referred six attorneys associated with a respected law firm to the California Bar for possible disciplinary action. The order was based on Qualcomm's failure to produce over 300,000 pages of relevant material, much of it consisting of emails, and some of which was devastating to Qualcomm's case. The case highlighted the difficulties and the incredibly high stakes of discovery in the age of electronic communications.
 
A number of writers have attempted to distill the lessons of the Qualcomm debacle. They do not all arrive at the same conclusions, although they seem to agree there are five.

In the ABA Law Practice Management Section's Law Technology Today newsletter, legal technology author John Tredennick identifies the following lessons:

  1. You Better Check Your Witness's Computer Before Allowing Him/Her to Testify. Qualcomm's outside litigation counsel had relied on the in-house legal team to collect email data. Tredennick sees in the order a directive to litigation counsel to affirmatively oversee the collection process.
  2. It Doesn't Help to be a Lowly Associate. One of the attorneys referred for discipline testified that he had expressed reservations to his supervisors about the adequacy of the collection process.
  3. Whatever You Do, Don't Be Cutesy When You Question Your Witnesses. Counsel knew that the witness whose testimony revealed the existence of undisclosed documents had them, but attempted to steer around the problem by limiting the questioning. However, the damage was done on cross examination.
  4. The Smarter They Are, The Harder They Fall. The reputation of the plaintiff's firm for skill and experience may have hurt it, undermining the court's willingness to consider the possibility that the omissions wereinadvertent or negligent.
  5. The Legal Team May Be Responsible for Your Client's Collection Efforts. Although trial counsel relied on inside counsel to supervise data collection, the court held that this was a specific responsibility of trial counsel.
Alan Cohen of law.com's Corporate Counsel, speaking from the perspective of the corporate inside counsel, lists the following lessons:
  1. Outside counsel should know that they won't be penalized for pursuing the evidence. Corporate clients must allow outside counsel to ask the hard questions and press inquiries the client would rather not respond to.
  2. Keep asking questions. Outside counsel should be asking questions of company witnesses up and down the ladder, and not assuming that the "playbook" was followed.
  3. Don't outsource e-discovery -- oversee it closely, at the very least. The corporate client, as well as outside counsel, must make a strong commitment to full compliance with discovery.
  4. Don't annoy the judge. Qualcomm hadfought every discovery request in the case, even quarreling over the meaning of ordinary words. This may have hurt them when the remedial order was imposed.
  5. Document the document collection. Qualcomm's counsel relied on memory for many key points as to what was done and why, and often testified that they could not remember facts. This underscores the importance of keeping a careful record of the actions and decisions of the discovery process.
Both articles explain these observations in much more detail, and should be read to understand the full context of the conclusions.

On appeal, a District Judge modified the judgment to vacate the sanctions against the six attorneys, and remanded the matter to the Magistrate Judge to give the attorneys an opportunity to defend themselves using the "self-defense exception" to attorney-client confidentiality. The corporate client attributed the failures to litigation counsel, and the district judge held that counsel should be allowed to respond to those allegations.