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Amid the ongoing drama over attorneys facing possible sanctions for discovery failures in the now-infamous San Diego Qualcomm case, a less dramatic � though crucial � theme has emerged: communication. After reviewing declarations from each former outside Qualcomm counsel explaining their roles in the case, federal Magistrate Judge Barbara Major last week surmised that there was “an incredible breakdown in communication of leadership between [the] client, the attorneys and among their counsel.” The declarations also showed that a Heller Ehrman partner claimed attorneys from Day Casebeer Madrid & Batchelder � the lead firm in the case � failed to tell him during trial that new, relevant e-mail evidence had been found. The Heller partner, Stanley Young, says this lack of communication led him to make a misleading comment to the judge. It remains unclear what kind of communication breakdown � whether it was between the attorneys or between the lawyers and their client � led to Qualcomm’s failure to turn over hundreds of thousands of documents. The former outside attorneys couldn’t explain their conversations with Qualcomm about evidence because the company invoked attorney-client privilege. What is clear is that intellectual property litigators who aren’t involved in the case say good communication is crucial to keeping a case from veering off the rails. In a complicated proceeding like the Qualcomm/Broadcom dispute, which involved multiple firms on each side, the need for effective communication is even greater, litigators said. Day Casebeer served as lead counsel and Heller mainly handled the damages aspect in the San Diego case. Having two firms on a case is “an aggravated version of communicating within one law firm, where you have multiple lawyers working on a matter handling different aspects,” said Ropes & Gray partner and IP litigator Mark Rowland. One potential pitfall in splitting up the aspects of the case concerns consistency. For instance, one might be handling patent validity issues, while another lawyer, whether from the same firm or not, handles infringement, Rowland said. The attorney arguing for infringement would tend to describe the patent as broad, so as to convince the judge that another company’s technology infringes on that patent. Yet a lawyer arguing for a patent’s validity would tend to paint the patent narrowly, to differentiate it from earlier, related patents, Rowland said. And unless they communicate with each other, they could be using totally inconsistent arguments about the same patent before the judge, he said. In big, complicated matters heading for trial, a lead partner usually directs and delegates the case duties to various members of the team, litigators said. This partner plays a gatekeeper role, and is often the point person for communications with the client. “There has to be somebody at the top who has his or her finger on the pulse of everything that’s going on,” said Richard Grossman, a litigation partner with Townsend & Townsend & Crew. “That means knowing the big picture, and also, when necessary, getting as granular as necessary to make sure every detail is attended to.” This top manager must set deadlines and set the overall tone as far as the top priorities of the case, he said. Some litigators hold weekly conference calls for all the attorneys on the case to share information and update everyone on their progress. Others don’t. “I generally try to avoid weekly meetings, mainly because I like to have meetings where there’s something specific to discuss,” Grossman said. “Clients are not particularly keen on paying for the time involved for a lot of internal communication between members of a large team.” The client’s level of participation in these and other meetings varies according to their wishes, attorneys said. Some are more hands on, while others prefer not to be bothered with frequent updates. Without strict deadlines and a strong understanding of everyone’s role, mistakes such as missing filing dates start to occur, Grossman said. Electronic discovery adds even more complexity to communications, attorneys said. “It’s not as simple as saying, ‘Well, I’ll just go walk around and collect the documents,’” Rowland said. “It’s a task that requires a lot of specialists.” In addition to the specialists, the client company’s information technology group often plays an important role in discovery, and must have a clear idea from the attorneys of what to search for, Rowland said. David McGowan, who teaches ethics at the University of San Diego School of Law and is a former corporate attorney, has monitored the Qualcomm case closely. He said the division of duties and responsibility among the Qualcomm attorneys was not unusual or troubling. “The structure did not bother me,” he said. “I don’t know that there’s a one-size-fits-all prescription of making sure that information flows properly.” Townsend’s Grossman once worked on another case in which the Day Casebeer firm directed the activities of other firms working on behalf of the same client. “I was familiar with how they operated in an environment where you have to coordinate efforts of multiple lawyers,” he said. “They did a fabulous job.”

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