InsideTech » March 2008
Rocks and Hard Places
Qualcomm Inc.’s e-discovery blunder has sent ripples through the legal community. Read expert Clifford F. Shnier’s take on this story of ethics, procedure and what the judge termed “deliberate ignorance.”
The United States District Court in the Southern District of California recently ruled in Qualcomm Inc. v. Broadcom Corp. that counsel are clearly under an ethical obligation to ensure that their clients fully and properly disclose electronically stored information.
Magistrate Judge Barbara Major in that case sanctioned Qualcomm for its failure to produce over 46,000 e-mails and other electronic documents that Broadcom had requested in discovery. The sanctions took several forms. Judge Major ordered Qualcomm to pay Broadcom over $8.5 million for its “monumental and intentional discovery violation” and several of that company’s outside counsel for “ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.” These six outside counsel were further ordered to send a copy of her order to the State Bar for investigation.
At page 31 of the decision, the magistrate jude stated that “the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm’s
document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation.”
Under our Rules of Civil Procedure, any information that is relevant and not privileged is discoverable. It’s been that way for decades. As lawyers we know this from a very early stage of our training; Civil Procedure is so fundamental to our legal system that it is taught in first-year. But it’s still not an easy concept for some non-lawyers involved in litigation to get their heads around. That may be because, to some, it seems counter-intuitive. As a judge in another Federal District observed eight years earlier in Danis v. USN Communications Inc.:
“In our system of civil litigation, the discovery process is the principal means by which lawyers and parties assemble the facts, and decide what information to present at trial. FRCP 26 requires a party to produce non-privileged documents which are ‘relevant to the subject matter involved in the pending action.’ That requirement embraces not only documents admissible at trial but also documents and information that are ‘reasonably calculated to lead to the discovery of admissible evidence.’ This broad duty of disclosure extends to all documents that fit the definition of relevance for the purposes of discovery, whether the documents are good, bad, or indifferent. While it may seem contrary to the adversarial process to require such ‘self-reporting’, it is in fact a central tenet of our discovery process.”
Yes, we have an adversarial system, but when it comes to discovery, we have to fess up to whatever we have, good or bad.
In many other jurisdictions, such as on the European Continent, civil discovery is limited to disclosure of documents on which the party intends to rely in its case.
Qualcomm began in 2005, with Qualcomm as plaintiff alleging that Broadcom had infringed two of its patents. Broadcom’s defense was that Qualcomm was precluded from suing on those patents because it had agreed to waive them as part of the terms of participation in an industry group known as the Joint Video Team (JVT), which was tasked with the development of a video-compression standard that came to be known as the H.264 standard released in May 2003.
Notwithstanding discovery requests from Broadcom that would have covered any communications during the relevant pre-May 2003 period pertinent to the JVT and the H.264 standard, no such documents were produced during discovery by Qualcomm. The first time any came to light was during the trial, when counsel for Qualcomm was preparing one of their engineers, Viji Raveendran, to testify. It became apparent she had received 21 e-mails from the JVT industry group, which had set up a mailing list called “avc_ce”.
At the trial, Qualcomm counsel questioning Raveendran in her direct testimony on Jan. 24, 2007 “pointedly did not ask her any questions that would reveal the fact that she had received the 21 emails from the avc_ce mailing list; instead, he asked whether she had ‘any knowledge of having read’ any emails from the avc_ce mailing list.” On cross-examination by Broadcom’s counsel, Raveendran was forced to admit she had received these 21 e-mails. Qualcomm took the position that Raveendran was merely a passive recipient of an e-mail distribution and that the e-mails themselves weren’t relevant.
Maybe. But their mere existence raised a red flag, and the court found that outside counsel were doing their best to shield their eyes from seeing it, calling this “deliberate ignorance.”
