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The San Francisco earthquake measured 8.25 on the Richter scale, claimed 3,000 lives and caused half a billion of damage in 1906 dollars. The 1989 Loma Prieta earthquake registered 6.9 on the scale, left 63 dead, 3,700 injured and delayed the World Series for 10 days. The 1994 Northridge quake, a mere 6.7, resulted in 57 deaths, 9,000 injuries, and $40 billion of damage. The 2008 Qualcomm case has not been assigned a Richter number; it caused no deaths. But it should send shock waves far outside of California. On Jan. 8, Magistrate Judge Barbara Major issued a sanction order and referred six attorneys to the State Bar of California for investigation of possible ethical lapses. All because e-discovery had not been properly conducted. An unnatural disaster in the Qualcomm case Let us be clear. This decision was issued but a few weeks ago; it may be reversed or modified. There no doubt is a way to tell the tale that is less damning to Qualcomm and its lawyers than Major’s recitation. But she is the judge and she has judged and, oh boy, has she damned. We will use pseudonyms in this article because we take no joy in reporting that lawyers have been sanctioned. These six lawyers, judging from their bios, are fine lawyers at the top of the profession. If this happened to them, it could happen to us. It could happen to you. In Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. Lexis 911 (S.D. Calif. 2008), Broadcom asserted that Qualcomm’s patent infringement action was waived by Qualcomm’s participation in an industrywide collaboration known as the Joint Video Team (JVT) that led to the adoption of a video coding standard in 2003. JVT participants were required to disclose relevant patents and license them to anyone who followed the 2003 standard � if Qualcomm had been a participant prior to adoption of the standard, its action against Broadcom was waived. Qualcomm asserted, however, that it was not a participant prior to 2003. We have to fill in a few gaps here with speculation. We’re guessing that the JVT was a confab of a very large number of entities, some of which came to meetings to participate, some of which participated by mail, some of which participated passively by merely monitoring events. We’re guessing that the JVT didn’t keep complete records of who was or was not a participant. But we are not guessing, because Major tells us that Broadcom sought discovery about Qualcomm’s pre-2003 participation. And therein lies the tale. Qualcomm responded in interrogatories that its first JVT involvement was in December 2003, after adoption of the standard. Qualcomm produced Rule 30(b)(6) witnesses who stated that Qualcomm had not participated in the JVT until late 2003. At the Rule 30(b)(6) deposition, Broadcom used the only document it had that suggested participation: a December 2002 e-mail that included the e-mail address of a Qualcomm employee, Viji Raveendran, in what looked like a list of members of a JVT subcommittee called AVC. The e-mail was not sent to nor received by Raveendran; it simply listed her e-mail address. Qualcomm remained resolute � indeed, Major said “aggressive” � in its assertion that it had not participated in the JVT in 2002. It filed declarations and pleadings asserting that there had been no pre-2003 involvement. And then the wheels started to come off. While preparing Raveendran for testimony, Junior A. Soseat (remember, we’re using stage names here), stumbled upon an August 2002 e-mail welcoming Raveendran to the AVC. Soseat then asked Raveendran to search her laptop with the term “AVC” � and turned up 21 separate e-mail chains, none of which had ever been produced, which were addressed to Raveendran in 2002 about the work of the JVT. Soseat reported his discovery to his elders, Wiley Vetren and C. Nora Pardner. Collectively, they decided that the 21 e-mails were not responsive to Broadcom’s discovery requests. They said nothing about the 21 e-mails to Broadcom. And maybe not to their own co-counsel, either. Soseat, Vetren and Pardner were all part of a boutique IP firm, Patents & Progeny. P&P had brought in Big & Bigger, a 650-lawyer international firm, after discovery had been completed, to help try the case. In an argument four days after the P&P lawyers had decided not to produce the 21 e-mails, B&B’s Dan D. Fellow argued to the judge that there was no evidence of any pre-2003 involvement by Qualcomm in the JVT. Fellow later would maintain that P&P never told him about the 21 e-mails; P&P asserted otherwise. In any event, Vetren and Pardner stood by silently as Fellow made his inaccurate assertions to the court. And then the fetid bodily secretion hit the air movement device. Qualcomm called Raveendran to testify, and carefully asked questions so as not to elicit the existence of the 21 e-mails. Broadcom’s cross-examiner, however, did not roll off a radish truck; he got Raveendran to reveal that she had received multiple JVT e-mails in 2002. Qualcomm initially argued that the e-mails were not requested in discovery; but eventually produced them. The jury found for Broadcom. The court retained jurisdiction to address a number of issues, including discovery misconduct. Several months after the verdict, Pardner advised the court that Qualcomm had located a few more “relevant unproduced documents . . . that appear to be inconsistent with certain arguments made on Qualcomm’s behalf.” By a few, we mean 46,000. Forty-six thousand documents, 300,000 pages of relevant unproduced documents. The documents were located by the not terribly exhausting vehicle of searching the e-mail archives of less than two dozen key Qualcomm employees, searches that had not earlier been undertaken. Judge Major had major problems with the conduct of Qualcomm and its lawyers. Major found that Qualcomm’s failure to conduct basic searches at any time prior to trial amounted to an intentional withholding of documents. She deflected Qualcomm’s assertion that outside counsel should have given more guidance on the scope of searches that should have been performed. Qualcomm was responsible for its own failings and for the failings of its chosen counsel. The case likely would not have been brought or would have been quickly dismissed, or at least would not have gone to trial, had Qualcomm produced the documents that made the waiver defense air-tight. So the sanction was $8,568,633 � the full amount of Broadcom’s legal fees. But because the trial judge had already awarded that same amount after finding this an exceptional case, no actual additional sanction was imposed. Unless, of course, Qualcomm was able to get a reversal on the merits but not on the discovery abuse; then the discovery sanction would stand. As to counsel, Major rejected the hypothetical possibility that Qualcomm had hoodwinked the lawyers. Because they were so qualified, these lawyers should have seen through Qualcomm’s failures to conduct basic searches, whether that failure was intentional or negligent. Major concluded that the lawyers chose to ignore obvious signs that Qualcomm’s production was incomplete. The lawyers could � should � be sanctioned because they took the superficially suspect word of their client that production was complete. The associate who signed the original it-turns-out-were-false discovery responses � sanctioned. The senior partner who was informed about the 21 e-mails but didn’t think to look at them or initiate additional searches � sanctioned. The junior associate who followed orders and acquiesced in the decisions of his supervisors � sanctioned. Major declined to impose monetary sanctions because she had some question about her authority to do so, and because she did not think it would have as good a deterrent effect as would holding lawyers to their ethical duty to make reasonable inquiries in the course of responding to discovery. So she referred the mess to the California bar. Lessons to be learned: report potential problems Perhaps the California bar will take no action. Perhaps these lawyers will demonstrate that Major got it wrong, that they did nothing wrong. Perhaps the troubles in Ireland and the strife in the Middle East will be over tomorrow. All you young lawyers out there, don’t ever fail to report fully to your elders if you suspect or know there is a problem. Model Rule of Professional Responsibility 5.2 protects subordinate lawyers who follow a “supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” But don’t assume that you are home free by reporting up your chain of command. If your supervisor isn’t being reasonable, you, like the junior associate here, won’t be protected. You older lawyers, don’t ignore the gorillas if they slip into the room. If you learn something that would make a judge say “Why didn’t you follow up?,” follow up. All you lawyers, young and old, don’t rely entirely on your client’s IT people to help you get to the right answer. Don’t blindly take your client’s word for it when they say they don’t have or can’t find stuff. Probe; inquire; investigate. If you see a warning flag, if you see something that suggests the previous production is incomplete, go back, re-inquire. Oh, and tell the judge the truth . . . . Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers (ACTL) and partners in Chicago’s Jenner & Block. Solovy, the firm’s chairman emeritus, can be reached at [email protected]. Byman, the past chair of the ACTL Federal Civil Procedure Committeee, can be reached at [email protected].

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