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October 18, 2010 5:58 PM

Inside an E-Discovery Debacle

Posted by Irene Plagianos

Earlier this year, when a federal magistrate judge exonerated six of Qualcomm Corporation's outside lawyers from sanctions that could have derailed their careers--it was big news. But exactly what went wrong in the egregious e-discovery failure in the Qualcomm-Broadcom patent fight? In The American Lawyer’s Litigation 2010's cover story, contributing writer Joseph Rosenbloom takes a long hard look at a case that should be a cautionary tale for all litigators.

According to magistrate judge Barbara Major's April order, there's plenty of blame to go around. Major rapped the six Qualcomm lawyers--five from Day Casebeer Madrid & Batchelder and one from Heller Ehrman--for "significant mistakes, oversights, and miscommunication." A couple of young Day Casebeer lawyers decided to stop their search for relevant e-mails without checking the individual computers of Qualcomm employees, and no one questioned their decision. Only after trial did 200,000 pages of unsuspected e-mail evidence turn up.

"The first thing you do is get the files before you question the witnesses," Cravath, Swaine & Moore's Evan Chesler, who represented Qualcomm in the sanctions proceedings, said at a hearing.

But Major came down even harder on Qualcomm itself: The client was less than forthcoming with its lawyers about evidence that might have helped the other side, she found. She blasted Qualcomm for "an incredible lack of candor."

"Really, it was about asking [Qualcomm employees] a question and them not telling you everything they knew on the subject," Joel Zeldin of Shartsis Friese, who represented two of the Day, Casebeer lawyers, told Rosenbloom.

One lesson for litigators: In discovery, even if you think your clients are leveling with you, it's probably still a good idea to check their computer drives. With claims of e-discovery abuses on the rise, just mentioning the Qualcomm mess can cause lawyers to tremble. With good reason.

 

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