Sometimes it seems that we have become so inured to wrongdoing that only a transgression of mammoth proportions draws our attention and offends our sense of propriety – Bernie Madoff being a prime example. Well, a team of lawyers now stands accused of improperly withholding forty-six THOUSAND (46,000) documents from discovery. Qualcomm Inc. v. Broadcom Corp. Yes indeed, folks, a new world’s record in discovery misconduct.
Stated succinctly, Qualcomm sued Broadcom for infringing patents directed to digital video compression. In its defense, Broadcom alleged that Qualcomm had participated in industry meetings directed to the setting of video compression standards. If proven, this would render the Qualcomm patents unenforceable. Thereafter, the story becomes “unclear” (lawyerspeak for “everyone is pointing his finger at someone else with the objective of covering his own behind”).
The documents in question are email messages – tens of thousands of them. Qualcomm’s attorneys assert that they properly asked their client to produce all “responsive” messages, but that the client “misled and stonewalled” them. Qualcomm employees respond that the attorneys failed to ask the “right questions” (client-think – if I can hide damaging documents from my attorney, everything will be OK).
The attorneys complained that attorney-client privilege prevented them from adequately addressing the client’s response. The trial judge neatly solved this problem by ruling that the lawyers could “pierce” (lawyerspeak for “ignore”) the attorney-client privilege to defend themselves. This should lead to some very interesting exchanges as the Qualcomm employees and their attorneys attack each other. In the meantime, the Court ruled the patents unenforceable and ordered Qualcomm to pay Broadcom’s legal fees and costs. The matter has also been referred to the state bar association, where the attorneys now face serious sanctions.
As an interesting side note, “experts” commenting on the case have faulted Qualcomm (the “most inexcusable error”) for “pissing off the judge” by arguing about practically every discovery request. When the shoe was on the other foot, the judge showed no mercy.
THE LESSONS TO BE LEARNED: Clients – don’t try to hide damaging documents, as they will likely be found anyway and trying to hide them only makes the situation worse;
Attorneys – don’t trust your client overly much, document your search efforts in case you need to defend yourself later;
All parties – to quote the commentators, “don’t piss off the judge.”