LEARNING FROM QUALCOMM'S DISCOVERY ERRORS

The following guest post is by Michael V. Solomita and Steven B. Gauthier of Amster, Rothstein & Ebenstein LLP (Michael V. Solomita is Partner and Steven B. Gauthier is an Associate. They may be reached at msolomita@arelaw.com and sgauthier@arelaw.com).

In Qualcomm Inc. v. Broadcom Corp., No. 05-cv-1958-B, slip op. (S.D. Cal. Jan. 7, 2008), the Court sanctioned Qualcomm and its attorneys for failure to produce key electronic documents.  There is little doubt that the behavior of Qualcomm and its attorneys was egregious and warranted the severe sanctions imposed.  However, the Qualcomm decision underscores two key issues for clients and their attorneys to keep in mind with respect to discovery.

First, the decision highlights the ever-increasing importance of electronic discovery.  Indeed, the Court sanctioned Qualcomm and its attorneys for failure to search for and produce key electronic documents such as the relevant e-mails of the employees who testified on behalf of Qualcomm.  It is imperative, therefore, that clients and their attorneys make sure to adequately search for and produce electronic documents and information in litigation.

Second, the decision emphasizes the obligation of clients and their attorneys to work together regarding discovery to ensure that they produce relevant, non-privileged documents.  The Court found fault with Qualcomm for concealing and lying about key electronic documents.  The Court also found fault with Qualcomm’s attorneys for initially failing to perform a reasonable inquiry into whether the documents requested by Broadcom existed and later for concealing these documents once discovered.  The Court specifically faulted the Qualcomm attorneys for simply taking Qualcomm’s word that there were no relevant documents, even though there were many indications to the contrary.

As such, the key lesson from Qualcomm is that the burden is on both the client and its attorneys to ensure that a reasonable inquiry is performed to identify and produce relevant documents and information, particularly electronic documents.  For more information on the Qualcomm decision, see our Guest Column on IP Law 360,  which will soon be available here.