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A federal magistrate cleared the way Friday for Qualcomm’s former outside litigators to publicly explain their roles in the company’s failure to turn over hundreds of thousands of discoverable documents. And if the lawyers’ explanations don’t adequately get to the truth of what happened, the judge will consider sanctions against Qualcomm itself, according to attorneys involved in the case. San Diego federal Magistrate Judge Barbara Major had earlier threatened sanctions against all of Qualcomm’s outside counsel. Major ruled at a hearing Friday that the attorneys, from the Heller Ehrman and Day Casebeer Madrid & Batchelder firms, can file declarations with the court by Wednesday shedding light on why the documents weren’t turned over. While the Day Casebeer and Heller attorneys cannot use privileged communications in their declarations, Major said federal law allows them to use work-product information in their own defense, sources said. That means the attorneys can describe how various duties in the case were allocated, and possibly other insights. If the information the attorneys provide in their revised declarations does not fully explain how the discovery error occurred, Major said she will consider sanctions against Qualcomm itself because it has refused to waive privilege in the proceeding. Qualcomm’s lawyer in the matter, William Boggs of DLA Piper, declined to comment on the hearing’s outcome. Kerr & Wagstaffe’s James Wagstaffe, who represents Day Casebeer partner Lee Patch, said he and his client are looking forward to bringing forth “the facts showing there was good-faith conduct by the lawyers.” And Heller Ehrman attorney Lawrence Keeshan noted: “While we did not obtain all of the relief we sought in our motion, we believe that within the limitations set by the court’s ruling, we will present compelling evidence that will demonstrate that our firm and its attorneys acted entirely appropriately in handling the matters in question.” The attorneys already filed written declarations under seal last week, and had asked Major to allow them to include additional information that fell under Qualcomm’s attorney-client privilege to fully explain what happened. The attorneys asked Major to pierce privilege under the “self-defense exception,” which they argued exists under federal law. At Friday’s hearing, Major found that the exception was better suited for situations where a third party is requesting privileged communications from attorneys, sources said. This case, on the other hand, is a discovery matter. Qualcomm, in court papers earlier this week, said it was not averse to revealing privileged information to get to the truth. But the company wanted to do it under seal, so other legal disputes Qualcomm has with Broadcom, their opponent in this case, would not be affected. Now that Major has decided not to pierce Qualcomm’s privilege, the attorneys’ declarations next week will be accessible to the public. At a January trial, a Qualcomm witness under cross-examination revealed the existence of 21 e-mails that hadn’t been turned over to Broadcom. In the weeks that followed, Qualcomm attorneys said they’d found hundreds of thousands of discoverable documents. Broadcom prevailed at trial, and a different judge ordered Qualcomm to pay Broadcom’s $8.5 million legal bill. Major is scheduled to hear arguments on whether the former Qualcomm attorneys should be sanctioned on Oct. 12.

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