Correcting Missteps

To read about Qualcomm's disastrous discovery, click here.

After watching their case go down in flames and withstanding bench slaps from two federal judges, Qualcomm Inc. and its outside attorneys will at least have the chance to learn from their mistakes--and in-house counsel everywhere will likely benefit from this hard-learned lesson in case management.

In January, Magistrate Judge Barbara Major of the Southern District of California ordered them all to participate in a Case Review and Enforcement of Discovery Obligations (CREDO) program to pinpoint what exactly went wrong in Qualcomm Inc. v. Broadcom Corp.-

Insiders say the results could provide a standard for handling discovery in complex litigation. "It's already being touted as a model," says Michael Arkfeld, principal with Arkfeld and Associates, an e-discovery consultancy. "It depends on what comes out of it. The six attorneys and Qualcomm have to work on this together."

In her ruling, Major outlined the steps Qualcomm and its lawyers would take over the next months:

1) Identifying the factors that led to the discovery violation.

2) Creating and evaluating proposals to correct those factors.

3) Developing "a comprehensive protocol that will prevent future discovery violations."

4) Applying this protocol to other situations, "such as when the client does not have corporate counsel, when the client has a single in-house lawyer, when the client has a large legal staff, and when there are two law firms representing one client."

5) Evaluating data-tracking systems, software and procedures to make it easier for outside counsel to identify all potentially discoverable documents.

6) Identifying other information or suggestions to prevent discovery violations.

Once the results of this analysis are published in late April or May, the public will likely catch a glimpse into the inner workings of a litigation giant--and this, Major hopes, will help prevent the sort of massive discovery violations that occurred in Qualcomm from happening in future cases.

"While no one can undo the misconduct in this case, this process, hopefully, will establish a baseline for other cases," Major wrote. "Perhaps it also will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena. ... If nothing else, it will provide a road map to assist counsel and corporate clients in complying with their ethical and discovery obligations and conducting the requisite 'reasonable inquiry.'"

Associate Editor

Melissa Maleske

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