Patrick A. Cathcart on the Disciplinary and Ethical Issues Arising From Discovery in Qualcomm, Inc. v. Broadcom Corp.

In Qualcomm, Inc. v. Broadcom Corp., a patent infringement action, Broadcom argued that Qualcomm waived enforceability of its patent by participating in a Joint Video Team (“JVT”). Qualcomm withheld documents related to Broadcom’s argument, and  the trial court sanctioned Qualcomm and its attorneys. In analyzing this case, Patrick A. Cathcart provides a litigator's practical perspective on the sanctions imposed as a result of discovery abuses and discusses the dangers inherent in conducting discovery in any complex litigation and in taking a careless or nonresponsive approach in responding to discovery requests. He writes:
 
     A Qualcomm witness, Viji Raveendran, testified at trial. During Raveendran’s preparation, one of the trial attorneys (an associate at one of the law firms) discovered a 2002 email to the witness that welcomed her to a mailing list that related to JVT meetings. On searching Raveendran’s laptop, the attorney discovered 21 separate emails relating to the JVT process. “The Qualcomm trial team decided not to produce these emails, “claiming they were not responsive to Qualcomm’s discovery requests.” … [sic] The attorneys ignored the fact that the presence of the emails on Raveendran’s computer undercut Qualcomm’s premier argument that it had not participated in the JVT in 2002. The Qualcomm trial team failed to conduct any investigation to determine whether they were more emails that also had not been produced.
 
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     In post-trial proceedings, Qualcomm continued to dispute the relevancy and responsiveness of the 21 emails. Trial attorneys told Broadcom in correspondence that they had continued to believe that Qualcomm performed a reasonable search of Qualcomm’s documents during discovery and that the 21 unsolicited emails were not responsive to any valid discovery obligation. Subsequently the attorney told Broadcom that Broadcom’s “negative characterization of Qualcomm’s compliance with its discovery obligation” was “wholly without merit,” but agreed to search the current and archived emails of five trial witnesses. Subsequently the Qualcomm trial team admitted to the court that Qualcomm had “thousands of relevant unproduced documents” and that their review of the documents “revealed facts that appear to be inconsistent with certain arguments that [counsel] [sic] made on Qualcomm’s behalf at trial and in the equitable hearing following trial.”
 
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     The Qualcomm v. Broadcom opinion discusses the standards for determining compliance with Fed Rules Civ. Proc. Rule 26 and Rule 37 discovery obligations, and denotes that the rule requires the court to award reasonable attorneys’ fees to the prevailing party on motions to compel unless the court finds the loosing parties’ position was “substantially justified” or other circumstances that make such an award unjust. The court noted “there is no requirement under this rule that the failure be willful or reckless; ‘sanctions may be imposed even for negligent failures to provide discovery.’”
 
(citations omitted)