FRCP Gets Personal for Lawyers in Qualcomm Case - 3 First Steps to Protect Your Company AND Yourself
Posted by Alan Armstrong, VP Business Development
No I didn’t. Yes you did. No I didn’t. Yes you did! The Qualcomm post-trial trial in the Southern District of California court sounds a bit like a Monty Python skit. No it doesn’t. Yes, it does. Stop it. Stop what?
19 lawyers, most of whom come from a top-tier California law firm, Day Casebeer, face the serious threat of being sanctioned if they cannot explain why they failed to produce email that was relevant to the Qualcomm suit against Broadcom, a suit that Qualcomm lost. This is serious stuff. These lawyers and their firm apparently have a clean record, but if found guilty here, they will be sanctioned and be required to declare their misconduct in any future case that they try which involves electronic discovery. And what case does not?
But here’s where the comedy sketch starts. Qualcomm has client-attorney privilege, which means that the attorney (Day Casebeer and two others, now facing sanctions), cannot disclose its conversations with Qualcomm (the client). Qualcomm could waive its privilege, and thus allow the conversations to be released, and allow the attorneys to explain their actions, but Qualcomm has refused to do so because, Qualcomm says, secrets might be released about other patent issues and cases that would threaten Qualcomm’s competitive position.
Confused yet? No you’re not. (Yes I am.)
So the dialog goes something like this:
Judge: Day Casebeer, explain yourselves.
DC: We can’t.
Judge: You must.
DC: We want to.
Judge: Then do it.
DC: We can’t.
Judge: Yes you can.
DC: No we can’t.
Judge: If you don’t, I will probably sanction you.
DC: We want to. But We can’t.
Judge: You must.
I admit, it doesn’t have the same cadence as the original, but one can see the similarity.
Here’s my understanding of the background in this case: Qualcomm sued Broadcom for patent infringement, and lost. In the closing days of the trial, a Qualcomm engineer under cross examination referred to emails that Qualcomm should have provided to Broadcom but had not. Furthermore, a few days before the cross examination, a second-year associate from Qualcomm’s law firm, Day Casebeer, found those emails the witness' laptop but neither Qualcomm nor the law firm apparently produced the email.
The lawyers in this case look like an easy target, but comedy sketches aside, it’s worth considering the burden they faced in this case. I think it is at least plausible that emails relevant to a certain case could be missed in an e-discovery process with the best possible intentions. That is, let’s assume for the moment that the Qualcomm and Day Casebeer attorneys were operating in good faith, searching for the right information and providing everything that they found. Isn’t it possible that they might miss something? Or even, isn’t it possible that they might miss 200,000 things, especially if those things were stored in a single place like an employee’s laptop?
But life isn’t fair, is it? And as the Qualcomm case shows, judges are no longer sympathetic to the plight of attorneys and companies who struggle with the burden of electronic discovery. Lawyers have the responsibility to know what information resides in what systems, and ultimately are responsible for producing all information relevant to the case while withholding information that can be legitimately withheld.
With the stakes this high, how can companies and their lawyers protect themselves? Here are a few suggestions:
1. The first step is for legal counsel and IT teams to map out what information exists, where it exists, how it can be collected, and the rough costs of doing so. Many companies do this when litigation comes to light, but when litigation arises it may be too late to do an adequate job. The new rules require companies to “meet and confer” on the terms of discovery within 99 days of litigation being filed. It pays to create a map ahead of time particularly for companies who are in a series of on-going cases.
2. As part of the mapping process, it would be prudent to identify the areas of greatest risks. One of the biggest risks of electronic information is that it can be dispersed everywhere, making it almost impossible to destroy information according to a retention / destruction policy. In a previous entry, I talked about how a single document might end up on 10 (or 100, or 1000, or even 14,000 in the case of Qualcomm) individual computers. When information is scattered so broadly, it can be difficult if not impossible to manage. For example, a company may wish to have all email destroyed after 3 years. But if an employee keeps local PST files, then the email may live longer than the retention / destruction policy, which creates the electronic equivalent of the “garage files” problem, where relevant papers would be found in employee garages or other unfortunate places.
3. Create a plan to address the top risks. If you agree that one of the biggest risks is decentralized information, it follows that centralized information is easier to manage, and centralizing information is a key goal. Not every piece of data can be collected into a central repository. After all, the information age relies on people have access to information on mobile devices, and that trend will continue. But for most documents and email, information can be placed into a central repository and remain accessible remotely and on mobile devices. The technology exists and is affordable, but it requires the company to enforce discipline and policy.
Gone are the days when legal counsel can argue that it was unaware of the technology. Yes you were, no we weren’t … it doesn’t work anymore. In the words of the magistrate in the sanctioning hearings:
In the absence of an explanation, "the inference is that Qualcomm intentionally decided not to search for them," U.S. Magistrate Judge Barbara Major said. "At best, the documents reveal a massive responsibility deflection," she said, "and an incredible breakdown in communication of leadership between [the] client, the attorneys and among their counsel."
She went on to say:
“The only entity that could have searched for those documents was Qualcomm. It was within Qualcomm's ability to produce the documents, but they did not choose to do so…If there is no sanction for (Qualcomm's) misconduct, then where is the deterrence?”
Paying attention yet? No we’re not. Yes you are.
References:
http://www.law.com/jsp/article.jsp?id=1192179811987
http://www.signonsandiego.com/news/business/20071013-9999-1b13qcom.html
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