Archive for the tpoic: ‘discovery’

What Makes You So Special? Qualcomm Revisited

Thursday, July 17th, 2008

Acroterions adorn each corner of Dallas’ historic courthouse “Old Red.” These gargoyle-like figures have a serpent’s body, bat’s wings, and the head and legs of a lion—characteristic of the Romanesque fascination with grotesque and monstrous creatures. (Acroterion is from the Greek word for “summit.”)
The most recent blog focused on Qualcomm Inc. v. Broadcom Corp. In Qualcomm, a Federal Judge for the Southern District of California handed Qualcomm and six of its retained attorneys severe sanctions for “monumental” discovery violations after the attorneys for Qualcomm failed to produce “tens of thousands” of electronic documents until after trial. Only six of the nineteen retained attorneys representing Qualcomm were sanctioned which begs the question, “Why?”

According to the court, one group of sanctioned attorneys were responsible for the initial discovery failure because they handled or supervised Qualcomm’s discovery responses and production of documents. The court specifically noted that had any of these attorneys insisted on reviewing Qualcomm’s records regarding the locations searched and terms utilized, they would have discovered the inadequacy of the search and the suppressed documents.

One attorney tried to avoid responsibility and represented to the court that he had requested a more thorough document search, but that Qualcomm refused to do so. According to the court, “if that attorney was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys.” If the supervising senior attorneys were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.

The court also found that a second group of attorneys were responsible for the attorney discovery violation because they also did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations. The court stated that these attorneys knew or should have known that particular statements in an e-mail received from Qualcomm contradicted Qualcomm’s trial arguments and the attorney had an obligation to verify that it had been produced in discovery or to immediately produce it. The court stated that if the receiver attorney lacked the experience to recognize the significance of the document, then a more senior or knowledgeable attorney should have assisted him. The supervising attorney should have recognized the importance of the document from his involvement in Qualcomm’s motion practice and trial strategy sessions.

The court found that if these two groups of attorneys had conducted a reasonable inquiry, they would have discovered the inadequacy of Qualcomm’s search and the suppressed documents.

The court indicated that a third group of attorneys were responsible for the discovery failure because they did not conduct a reasonable inquiry into Qualcomm’s discovery production before making specific factual and legal arguments to the court.

Yet another lawyer who was the primary liaison with another firm representing Qualcomm, and who was privy to the evolving theories of the case was found to have engaged in sanctionable conduct. This attorney was made aware of the discovery of electronic documents at Qualcomm and was in the best position both to understand their significance and to communicate any concerns.

The court found the remaining thirteen attorneys were less culpable than their sanctioned counterparts because the remaining attorneys did not “significantly participate in the preparation or prosecution of the case” or “participate in aspects of the case [related to the discovery issue].” The court also stated that although it was a close call, it would decline to sanction attorneys that did not begin working on the case until after discovery had closed and those that monitored the case for impact on separate Qualcomm/Broadcom litigation.