Discovery Resources

Magistrate Judge Barbara Major handed down her sanctions January 7, 2008. The reaction from our community has been mixed. Some, like Winston and Strawn’s Jerold S. Solovy and Robert L. Byman see it as a cautionary tale, a “There but for the grace of God go I” tale. Others, like Ralph Losey, believe the sanctions were unbelievably weak (wimpy, he called them).

My take on this is that Judge Major has given a gift to Qualcomm and the sanctioned attorneys. She has given them a chance to clear their names and to emerge stronger than they were prior to this “monumental discovery violation.”

Clearing their names

While Major cast a wide net for her sanctions hearing, she referred to the State Bar only

six Day Casebeer Madrid & Batchelder lawyers — James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen and Lee Patch — and Heller Ehrman lawyer Stanley Young. In an unusual move, Major specified that the lawyers may have violated two Rules of Professional Conduct: Rule 5-200, which prohibits misleading a judge or jury with false statements, and Rule 5-220, which prohibits suppressing evidence that an attorney or client has a legal obligation to reveal.

Once at the State Bar, it is unlikely the seven will be disciplined harshly if they cannot defend themselves.

Court sanctioned protocol

Nor did she sanction them with more money. The monetary sanction for Qualcomm simply undergirded the award of attorney fees and expenses ($8.5 million plus) from Judge Rudi Brewster. Qualcomm will be credited with what they pay for the Brewster award. The attorneys pay no tribute.

Major’s core sanction has been for rehabilitation: rehabilitation of broken communication, broken process and a broken sense of what is “reasonable”. She has ordered the former Qualcomm team to reassemble and get to root cause and develop a litigation readiness protocol, which she will bless if it meets her standards. Each attorney needs to sign the protocol with the hours of participation.

This will allow each team member and Qualcomm to emerge with a court sanctioned protocol. They will be better prepared than any of their future adversaries should they choose to embrace this sanction adhere to the resulting protocol. Far from having a cloud over them as they enter a courtroom, they will be supported by an industry leading. best practice litigation readiness protocol, a court blessed litigation response plan.

This is a gift to an organization like Qualcomm, whose business model depends on defending their patents in courts throughout the country and the world. This is a gift to attorneys, whose business model depends upon clients’ and courts’ trust.

Collaborative challenge in an adversarial world

Major’s gift will not be accepted easily. It may even be appealed.

The Qualcomm defense team broke into pieces after the end of the trial and at the beginning of the sanctions process. Qualcomm refused to give up privilege so that outside counsel Day Casebeer and Heller Erhman could defend themselves. Outside counsel asked Major to abrogate the privilege, which she did for work product, while safeguarding attorney client communications.

Major not only ordered this broken team to reassemble, she also invited a Broadcom representative to attend at Qualcomm’s expense.

Getting to root cause without blame after a debacle is a challenge for any learning organization, let alone legal adversarial organizations. Add to it the dynamic of recent bruising to the bone court battles, it is even more of a challenge.

Specifically, The court ordered named

Qualcomm’s in-house lawyers and the Sanctioned Attorneys to participate in a collaborative Case Review and Enforcement of Discovery Obligations (“CREDO”) program, explaining:
While no one can undo the misconduct in this case, this process, hopefully, will establish a baseline for other cases. 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. To the extent it does so, everyone benefits - Broadcom, Qualcomm, and all attorneys who engage in, and judges who preside over, complex litigation. 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.” 

….

This is a collaborative process to identify the failures in the case management and discovery protocol utilized by Qualcomm and its in-house and retained attorneys in this case, to craft alternatives that will prevent such failures in the future, to evaluate and test the alternatives, and ultimately, to create a case management protocol which will serve as a model for the future. Because they reviewed and approved the false pleadings, the Court designates the following Qualcomm attorneys to participate in this process as Qualcomm’s representatives: Alex Rogers, Roger Martin, William Sailer, Byron Yafuso, and Michael Hartogs (the “Named Qualcomm Attorneys”). Qualcomm employees were integral participants in hiding documents and making false statements to the court and jury. Qualcomm’s in-house lawyers were in the unique position of (a) having unlimited access to all Qualcomm employees, as well as the emails and documents maintained, possessed and used by them, (b) knowing or being able to determine all of the computers and databases that were searched and the search terms that were utilized, and (c) having the ability to review all of the pleadings filed on Qualcomm’s behalf which did (or should have) alerted them to the fact that either the document search was inadequate or they were knowingly not producing tens of thousands of relevant and requested documents. Accordingly, Qualcomm’s in-house lawyers need to be involved in this process.

At a minimum, the CREDO protocol must include a detailed analysis (1) identifying the factors that contributed to the discovery violation (e.g., insufficient communication (including between client and retained counsel, among retained lawyers and law firms, and between junior lawyers conducting discovery and senior lawyers asserting legal arguments); inadequate case management (within Qualcomm, between Qualcomm and the retained lawyers, and by the retained lawyers); inadequate discovery plans (within Qualcomm and between Qualcomm and its retained attorneys); etc.), (2) creating and evaluating proposals, procedures, and processes that will correct the deficiencies identified in subsection (1), (3) developing and finalizing a comprehensive protocol that will prevent future discovery violations (e.g., determining the depth and breadth of case management and discovery plans that should be adopted; identifying by experience or authority the attorney from the retained counsel’s office who should interface with the corporate counsel and on which issues; describing the frequency the attorneys should meet and whether other individuals should participate in the communications; identifying who should participate in the development of the case management and discovery plans; describing and evaluating various methods of resolving conflicts and disputes between the client and retained counsel, especially relating to the adequacy of discovery searches; describing the type, nature, frequency, and participants in case management and discovery meetings; and, suggesting required ethical and discovery training; etc.), (4) applying the protocol that was developed in subsection (3) to other factual 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) identifying and evaluating data tracking systems, software, or procedures that corporations could implement to better enable inside and outside counsel to identify potential sources of discoverable documents (e.g. the correct databases, archives, etc.), and (6) any other information or suggestions that will help prevent discovery violations.

We will be examining in detail the nuances of this decision and the impact on our community over the next months. My next webcast will be on this subject on February 13, 2008.

Filed under Sound Evidence.

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