ethical issues in ediscovery - lessons from qualcomm

ETHICAL ISSUES IN ELECTRONIC DISCOVERY:

LESSONS FROM QUALCOMMBY:

KIRBY DRAKE

Overview

• Background of Qualcomm v. Broadcom

• Lessons to be Learned• Lessons for All• Lessons for Outside Counsel• Lessons for Clients• Lessons for Courts and the State Bar

Qualcomm v. Broadcom Timeline

Qualcomm sues Broadcom for patent infringement

Broadcom requests discovery on Qualcomm’s participation in the JVT

Qualcomm repeatedly denies involvement in the JVT during relevant time frame

Qualcomm files motion for summary judgment on waiver defense

Broadcom defense – waiver by participation in the JVT

Trial begins

Qualcomm v. Broadcom Timeline

Trial begins Trial witness forced to admit existence of emails on cross examination

Judge orders production of documents and jury finds in favor of Broadcom on waiver

Broadcom sought discovery on scope of discovery abuses

Qualcomm attorney discovers email showing trial witness communicated with the JVT

Judge sanctions Qualcomm and 6 outside counsel for discovery abuses

Qualcomm v. Broadcom - Sanctions

• Qualcomm ordered to pay $8,568,633.24• Six outside counsel referred to the State Bar

of California for investigation of possible ethical violations

• Qualcomm and outside counsel ordered to participate in Case Review and Enforcement of Discovery Obligations (“CREDO”) program

Qualcomm v. Broadcom – Sanctions for Most But Not All

• Several outside counsel never sanctioned because of steps taken to confirm accuracy of facts• Reviewed deposition transcripts and

discovery responses• Circulated drafts of pleadings to more senior

in-house and outside counsel• Investigated the facts surrounding the JVT

“He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth

the search.”

Brown v. Allen, 344 U.S. 443,537 (1953)

Lessons to be Learned from Recent Discovery-Related Decisions

Lessons for All

Lessons for Courts and State Bar

Lessons for Outside Counsel

Lessons for Clients

Lessons for All:1. The Truth Matters• Often see failure to

fully adhere to the principle of telling the truth

• Failure to admit when wrong when it comes to discovery issues

• Party and its outside counsel often suffer the consequences - sanctions

Lessons for All:1. Do Not Tell a Lie• Know the whole truth• Make accurate representations to the other

side as well as to the judge and to the jury• How?

• Find responsive information and produce it• Make the team aware of responsive information

early• Allow witnesses/counsel to be prepared to face

truth about existence and contents of responsive information before trial

Lessons for All:2. Err in Favor of Production• If you have to consider whether to produce,

probably should go ahead and produce it• Often less harmful to produce• Information may be responsive and

discoverable but not necessarily admissible• Courts tending toward requiring production

if responsive to a party’s claims or defenses

Lessons for All:2. Err in Favor of Production

Almost never incur wrath of Court by producing (except if it looks like a “document dump”)

But feet can be held to the fire for failure to produce responsive

information

Lessons for Outside Counsel:3. Taking Responsibility for Ensuring Client Compliance with Discovery

• Cannots• Musts


• CANNOT blindly rely on client’s collection and production

• CANNOT blindly trust what client describes as “standard” procedures for approaching discovery issues

• CANNOT shield eyes from seeing certain documents – must challenge clients regarding search and collection strategies


• MUST reach agreement as to how to engage in discovery process

• MUST have sufficient control over discovery process

• MUST gain access to locations where responsive data may be maintained

• MUST take steps to confirm compliance by key custodians – interviews, written questionnaires, etc.


“The Committee’s concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client’s custody and control. For the current ‘good faith’ discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.”

Fed. R. Civ. P. 26(g) Advisory Committee Notes

Lessons for Outside Counsel:4. Document Your Discovery Efforts• Keep a record of efforts with regard to

document search and collection• Can potentially use record to defend

discovery efforts should a discovery dispute arise

• May need to seek agreement from client that documentation of actions taken may be disclosed if issues arise as to sufficiency of discovery efforts

Lessons for Outside Counsel:5. If You Don’t Have a Plan, Make One• MUST define who is responsible for ensuring

discovery duties are carried out• MUST get IT personnel involved• MUST issue document hold or preservation

notice at outset of litigation• MUST inform employees that they have a duty

to manage information in accordance with written policies – litigation or not

• MUST consider investing in management technology/search tools

Lessons for Outside Counsel:6. If You Have a Plan, Adhere to That• Qualcomm allegedly had a plan in place for

collecting documents in response to discovery requests

• Despite having plan, Qualcomm apparently did not fully follow the plan

• MUST follow your plan – plan is only as effective as care given in executing plan

Lessons for Outside Counsel:7. Compliance Programs/Modify Rules• CREDO Program

• Identify facts that contributed to discovery violation

• Create and evaluate procedures to correct deficiencies

• Develop and finalize protocol to prevent future violations

• Modifications to State Discovery Rules• Consider state-promulgated electronic discovery

rules (i.e., California)• Balance burdens/needs of requesting party and

producing party

Lessons Learned

ethical issues in ediscovery - lessons from qualcomm

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