MEET & CONFER-FRCP 26 (f)

Qualcomm Incorporated, v. Broadcom Corporation

Procedural Rules and Guidelines for ESI Dscovery

U.S. Federal Court Rules of Civil Procedure – amended rules December 1, 2006 to include electronically stored information.

Rule 26 – Generally Rule 26 (f) – any motion to compel

disclosure or discovery must be accompanied by a certification that the movant has in good faith conferred in an effort to secure the disclosure or discovery w/out court action.

FRCP - Rule 26 (f)Four Main Components

1. CONFERENCE TIMING

2. CONTENT; PARTIES RESPONSIBILITIES

3. DISCOVERY PLAN

4. EXPEDITED SCHEDULE

FRCP - RULE 26 (f) 1

1. CONFERENCE TIMING

1.PARTIES MUST CONFER AS SOON AS POSSIBLE

2. AT LEAST 21 DAYS BEFORE SCHEDULING DAYS OR SCHEDULING ORDER IS DUE.

3. ATTORNEYS OF RECORD AND ALL UNREPRESENTED PARTIES THAT HAVE APPEARED IN THE CASE ARE JOINTLY RESPONSIBLE FOR ARRANGING THE CONFERENCE

FRCP -Rule 26 (f)2

2. CONFERENCE CONTENT; RESPONSIBILITIES

• Consider nature/basis of claims and defenses • Discuss possibilities for promptly settling or resolving

case• Develop a proposed discovery plan• Good faith effort to comply with plan • Submitting written report outlining plan to court within

14 days • Court may order parties or attorneys to attend the

conference in person!

RULE 26 (f) 3

3. DISCOVERY PLAN

(A) Includes timing, form, or requirement for disclosures;

(B) statement of when initial disclosures were made or will be made

(C) the subjects on which discovery is needed,

when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

( D) form or forms in which it should be produced.

RULE 26 (f)

(4) EXPEDITED SCHEDULE

Court may mandate if necessary:

(A) require the parties' conference to occur less than 21 days before the scheduling conference

(B) require written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to give an oral report.

Case Presentation

Qualcomm Incorporated v. Broadcom Corporation. United States District Court, S.D. California

FACTS: Qualcomm Incorporated v. Broadcom Corporation.,

Qualcomm initiated patent infringement action against Broadcom for infringement of two different patents.

Broadcom asserted waiver defense stating Qualcomm participated in (JVT )Joint Video Team in 2002-2003.

JVT is a standards-setting body related to the patents at issue.

Qualcomm denied participation and presented witnesses who testified that Qualcomm had never been involved in JVT.

Facts: Qualcomm Incorporated v. Broadcom Corporation.

Qualcomm attorneys failed to make reasonable inquiry and search witnesses computers for relevant documents or emails.

Qualcomm moved for summary judgment – stating lack of evidence establishing involvement.

Qualcomm moved for motion in limine to exclude evidence of participation

FACTS

At trial on cross exam – Q witness Viji Raveendran admits to receiving e-mails regarding JVT

Qualcomm forced to provide 21 e-mails found on witness’ computer prior to trial.

Jury returned verdict in favor of Broadcom

Broadcom’s attorneys orally move for sanctions against Qualcomm

Qualcomm notifies D.C. it discovered over 200,000 pages of relevant emails, memoranda, and company documents proving participation since at least January 2002.

HOLDING

United States Magistrate – Judge Barbara Major concludes that:

1. Qualcomm withheld tens of thousands of decisive documents intentionally to win case and to gain a strategic advantage.

2. Judge further concluded that attorneys played a role in withholding information

3. Judge refers 6 Qualcomm attorneys to the State Bar of California

SANCTIONS !!!

Judge sanctions Qualcomm 8 million dollars, and in addition awards Broadcom all attorney

fees and costs incurred in the litigation!!!

Orders Meet and Confer!

Judge Major is unhappy with lack of communication between client-attny and between junior counsel and senior counsel for Qualcomm!

Orders meet and confer process – 26 (f) Orders to immediately produce ESI documents in an

searchable format. Judge sets up telephonic, attorneys-only conference

for December 4, 2008 at 2:00 pm. Qualcomm is further directed to make arrangements

to initiate the call.

Question???

How then, in a world dominated by electronic data stored on laptops, PDAs, personal computers, employer servers, Internet servers, etc., do you comply with the “meet and confer” process and the 'reasonable inquiry' disclosure obligations imposed by Rule 26?

SOLUTIONS

Communication – meaningful discussion with client and other attorneys; keep all well informed

Take control of document production

Create discovery plan; Due diligence in choosing reliable e-discovery vendor.

Produce well-reasoned strategy/collaboration with e-vendor and opposing counsel in production.

Counsel should closely monitor process Be proactive.

COOPERATE AND PLAN DISCOVERY!