It’s not easy being us. We spend our time worrying about worst-case scenarios for our clients so that we can protect them. Our own worst-case scenario is being unprepared because we don’t have all the relevant facts. We need all the facts — good, bad and indifferent — and we don’t like surprises. Our need for complete information is at the root of the attorney’s duty of confidentiality and the attorney-client privilege that protects it. The confidential nature of the attorney-client relationship and the protection of the privilege are key components of our ability to protect our clients.
But what about protecting ourselves? Can we ever violate our duty of confidentiality to protect our own interests? This question was presented in Qualcomm Inc. v. Broadcom Corp., a recent California patent infringement case involving cell phone technology. During trial, the court learned that Qualcomm and its counsel did not produce more than 200,000 pages of relevant electronic documents. As a result, Qualcomm was ordered to pay Broadcom’s hefty legal fees ($8.5 million), and the district court judge referred the matter to a magistrate for consideration of further sanctions.
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