Qualcomm's Outside Counsel Allowed to Raise "Self-Defense" Exception to Attorney-Client Privilege
Judge Rudi M. Brewster (Calif. Southern District Court) has remanded part of the sanctions order against Qualcomm's outside counsel in a remand order issued March 5, 2008.
Judge Brewster allowed six of Qualcomm's outside attorneys to raise the federal common law "self-defense" exception to the attorney client privilege. At the earlier hearing on sanctions, the magistrate judge had disallowed the exception, not permitting the outside attorneys to introduce evidence against their client Qualcomm.
Judge Brewster reversed and remanded as to the six attorneys (five from Day Casebeer; one from Heller Ehrman), explaining:
Before the first oral hearing on the motion for sanctions, Qualcomm asserted the attorney-client privilege...A careful reading of the Qualcomm brief reveals two salient points: (1) Qualcomm filed no declarations in its defense; and (2) nothing in the Qualcomm brief criticized its counsel, other than two passing unsworn comments...
At the hearing on sanctions before Magistrate Judge Barbara L. Major, Qualcomm introduced, for the first time, accusations against outside counsel assessing responsibility for the failure of discovery that had occurred.
Judge Brewster found that after Qualcomm introduced accusatory evidence against its outside attorneys, the door was opened for counsel to defend themselves.
Opinion Highlights:
1. The magistrate judge's non-recognition of the "self-defense" exception to the attorney-client privilege was originally supported because Qualcomm had not presented any evidence, such as declarations against its attorneys. Thus, no adversity between Qualcomm and its attorneys was present.
2. Qualcomm filed four declarations of employees, exonerative of Qualcomm and critical of the services and advise of their retained counsel. None were filed under seal. Notwithstanding, Qualcomm still involved the attorney-client privilege.
3. This introduction of accusatory adversity between Qualcomm and its retained counsel assessing responsibility for the failure of discovery changes the factual basis which supported the earlier denial of the self-defense exception to Qualcomm's attorney-client privilege.
4. The attorneys have a due process right to defend themselves under the totality of circumstances presented in this sanctions hearing where their alleged conduct regarding discovery is in conflict with that alleged by Qualcomm concerning performance of discovery responsibilities.
Discussion:
Judge Brewster relied on two Ninth Circuit cases in recognizing the "self-defense" exception to the attorney-client privilege: Miranda v. So. Pac. Transp. Co., 710 F.2d 516 (9th Cir. 1983) and Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18 (9th Cir. 1981).
The Miranda case recognized the due process rights of attorneys where their alleged conduct regarding discovery is in conflict with that alleged by a client. 710 F.2d at 522-23.
The Weil case held that communications and conduct relevant to the topic areas of records discovery in conflict were not privileged. 647 F.2d at 24.
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