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In the fallout from a high-stakes discovery meltdown involving Qualcomm Inc., Day Casebeer Madrid & Batchelder partner Lee Patch has emerged highly contaminated. According to fresh declarations ( .pdf) filed Wednesday, Patch signed off on a junior Day Casebeer partner’s decision to withhold 21 potentially damaging e-mails from Qualcomm’s litigation opponent, Broadcom Corp. But when the trial judge asked Patch about the e-mails days later, Patch created the impression he did not know they existed, his declaration said. Patch also told the judge that neither he, nor his colleagues, had made any determination about whether the e-mails should be turned over. Those 21 e-mails turned out to be the tip of an iceberg of documents located after trial that were indeed relevant to the case � and should have been turned over to rival Broadcom months before. “I accurately but perhaps confusingly stated that I had not seen the emails,” Patch wrote in his declaration ( .pdf). “I now appreciate that I may have inadvertently created the misimpression that I had become aware of their existence either just then or the previous day.” Patch, a former chief patent counsel at Sun Microsystems Inc., stated in his filing that the Qualcomm matter was his “first case as trial counsel.” Patch’s attorney, James Wagstaffe of Kerr & Wagstaffe, said the 21 e-mails were not what led to the current discovery proceeding. “The court’s concern was the volume of documents that were discovered after trial,” Wagstaffe said. Wednesday’s declarations marked the first time detailed explanations for the discovery failure became publicly available. San Diego Magistrate Judge Barbara Major will consider the declarations in determining whether the attorneys deserve sanctions for their conduct. In August, Judge Rudi Brewster accused the attorneys of committing misconduct, and ordered Qualcomm to pay Broadcom’s $8.5 million legal fees. On Jan. 14, midway through the San Diego patent infringement trial, a junior Day Casebeer associate named Adam Bier searched a Qualcomm employee’s computer and found the 21 e-mails, which he brought to the attention of Patch and another partner, Christian Mammen, according to declarations from several firm attorneys. Mammen and Bier “concluded that the emails did not fall within the scope of Qualcomm’s discovery commitments,” the declarations said. The massive Qualcomm litigation was the first case Bier had ever worked as an attorney, he said in a court filing ( .pdf). Mammen was a junior partner, having worked at Heller Ehrman as an associate before coming to Day Casebeer in 2005. Bier and Mammen told Patch ( .pdf) they did not believe the e-mails were responsive. Patch concurred � but he never read the e-mails himself, his declaration says. Day Casebeer therefore did not notify Broadcom of the e-mails. But 10 days later, a Qualcomm employee mentioned them on the stand during cross-examination. When Judge Brewster asked about the e-mails, Patch told him he had not seen them, nor had he and his colleagues decided whether they were relevant, according to a declaration by Patch and his colleagues. Patch now says he meant to impress on the court that the judge needed to analyze the e-mails to determine if they had to be turned over; he wasn’t trying to suggest his team hadn’t yet assessed their relevance. Day Casebeer attorneys stressed in Wednesday’s filings that at all times, they “acted in good faith, without an intent to conceal evidence or otherwise obstruct the judicial process.” They added: “Sanctions are not warranted.” Qualcomm company officials were in charge of conducting physical and electronic searches for evidence during discovery, the Day Casebeer attorneys stated. “Responding attorneys did not have direct access to Qualcomm’s files or electronic devices, although they worked with Qualcomm to identify categories and potential custodians of responsive documents,” the Day Casebeer filing said. But Qualcomm employees who testified � including the engineer who revealed the 21 e-mails on the stand � submitted declarations faulting Day Casebeer attorneys for not asking them questions that would turn out later to be crucial because of the overlooked documents. A Qualcomm paralegal who did a significant amount of work on the case during discovery also submitted a declaration denying that she or anyone from the company’s in-house staff ever intentionally refused to turn over relevant documents. “I do not have the authority to refuse to collect documents requested by outside counsel, unless instructed by Qualcomm’s in-house counsel to do so,” wrote Christine Glathe. “That did not occur in this case and I did not refuse to collect any documents requested by outside counsel.” A hearing on the issue is scheduled for Oct. 12.

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