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By now the numbers are well known. 46,000: The number of relevant, occasionally case-shattering e-mails and documents Qualcomm failed to turn over during discovery in the patent infringement suit it brought against Broadcom. 200,000: The number of pages contained in those documents, of which Qualcomm claimed to be unaware. $8.6 million: The estimated cost of Broadcom's legal fees in Qualcomm Inc. v. Broadcom Corp., for which Qualcomm will be forced to foot the bill after Federal District Judge Rudi Brewster's none-too-pleased August 2007 order decrying the company's "deliberate plan to conceal evidence."
After presiding over a sanctions hearing, Federal Magistrate Judge Barbara Major was similarly indignant over what she deemed Qualcomm's "monumental and intentional discovery violation." With fiery orders from both judges, it was clear someone would have to pay.
Qualcomm, which declined to comment for this story, maintained it was not to blame for the unearthed e-mails. After fighting to preserve attorney-client privilege, Qualcomm filed four unsealed declarations in October 2007 in which employees exonerated the company while criticizing its outside attorneys. These declarations invoked a self-defense exception to the attorney-client privilege, and in a March order, Brewster lifted privilege. Now six of Qualcomm's outside attorneys--five from Day Casebeer Madrid & Batchelder and one from Heller Ehrman--will have the chance to tell outside counsel's side of the story. There's no telling what those hearings could reveal, but some experts expect an inside look at a case of discovery gone wrong.
Then during trial in January 2007, a Qualcomm employee admitted under cross-examination to receiving e-mails from the JVT's mailing list before the standard was published. "This was the tip of the iceberg that led to everything else," says Jack Regan, a partner with Wilmer Hale, which represented Broadcom in the Qualcomm action.
Namely, it led to production of the 46,000 JVT-related e-mails Qualcomm hadn't turned over during discovery, which proved involvement in the JVT in 2002. The jury returned a verdict for Broadcom and criticized Qualcomm's "inequitable conduct." In turn, Brewster referred Qualcomm and its lawyers to Major for sanctions.
Withers agrees that poor communication is at the root of the problem. "If anything is revealed from the attorney-client communications," he says, "I think the lack of attorney-client communications is going to be the most revealing."
Maintaining long-term, structured relationships with discovery counsel can bolster communication, Withers says. Another option is hiring in-house e-discovery experts who can get to know the inner workings of a company's electronically stored information. Software company Oracle Corp. has taken such steps.