In Broadcom v. Qualcomm, Magistrate Judge Barbara L. Major (California Southern District Court) took a proverbial “broadsword” to Qualcomm and its counsel for failing to undertake a reasonable search for documents that caused 46,000 relevant emails to be withheld through the time of trial. Qualcomm was ordered to pay all of Broadcom's attorneys fees. Several outside counsel for Qualcomm were referred to the California State Bar on ethics charges.
Qualcomm was represented by Day Casebeer and Heller Ehrman. Broadcom was represented by WilmerHale.
Identifying misconduct by Qualcomm through all phases of the case, Judge Major's ruling was clearly designed to have a broad-reaching deterrent effect. In fact, she expressed hope that the decision: “will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena.”
Judge Major continued, “[t]o the extent it does so, everyone benefits - Broadcom, Qualcomm, and all attorneys who engage in, and judges who preside over, complex litigation. If nothing else, it will provide a road map to assist counsel and corporate clients in complying with their ethical and discovery obligations and conducting the requisite ‘reasonable inquiry.’”
Aside from the sensationalistic aspects of the case, it is clear that Judge Major wanted to impart advice to a broad audience in how to ethically conduct the requisite “reasonable inquiry” in electronic discovery in hopes of curbing discovery abuses that have become all too common in recent years, and can be all too tempting when producing electronically-stored information. In that spirit, it is advisable for litigation counsel to understand and follow the broad-reaching instructions set out by Judge Major, discussed below.
Opinion Highlights:
1. For “good faith” discovery system to continue to function in the electronic age, counsel and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents.
2. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.
3. If a witness is testifying as an organization’s most knowledgeable person on a specific subject, the organization has an obligation to conduct a reasonable investigation and review to ensure that the witness does possess the organization’s knowledge. An adequate investigation should include an analysis of the sufficiency of the document search and, when electronic documents are involved, an analysis of the sufficiency of the search terms and locations.
4. When information is found at any time during the case that should raise red flags of relevance regarding documents not produced, counsel is required to do additional follow-up searching to see if other non-produced, relevant documents exist, and then produce them.
5. A reasonable inquiry into the factual basis of discovery responses as well as the factual basis of subsequent pleadings, papers, and motions based on those responses require, at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the defendant potentially possessing responsive information, and to account for the collection and subsequent production of the information.
6. A comprehensive case management protocol should be adopted; identifying by experience or authority the attorney from the retained counsel’s office who should interface with the corporate counsel and on which issues; describing the frequency the attorneys should meet and whether other individuals should participate in the communications; identifying who should participate in the development of the case management and discovery plans; describing and evaluating various methods of resolving conflicts and disputes between the client and retained counsel, especially relating to the adequacy of discovery searches; describing the type, nature, frequency, and participants in case management and discovery meetings; and identifying and evaluating data tracking systems, software, or procedures that will be used to identify potential sources of discoverable documents (e.g. the correct databases, archives, etc.).
Discussion:
The steps set out by Judge Major in this opinion represent the level of diligence that counsel should engage in to conduct good faith discovery.
But some of these steps are beyond the level of diligence that many (possibly most) lawyers typically engage in when responding to discovery requests. Most lawyers are currently struggling to attain base-level understand of IT infrastructures to properly identify emails and documents that need to be searched in response to a request.
Once discovery productions are “out the door” it is probably not all that common for attorneys to conduct additional searches if a “red flag” document appears. Distribution of discovery requests to employees and agents of a party potentially possessing responsive information is always a challenge, as employees come and go. Comprehensive case management protocols are probably not currently used by most counsel.
However, these areas all represent the state of attention required in managing electronic discovery cases today. And because counsel who sign pleadings and discovery responses and who make in-court arguments may ultimately be called to account for the reasonableness of their inquiries, all discovery efforts need to be documented and preserved. How do you achieve this standard on a consistent basis, case in and case out?
We now need a "discovery team" and a "discovery plan" established at the very beginning of a case. The discovery team needs to coordinate all information flow back and forth between counsel and the client. The discovery plan needs to be reasonable and flexible, but not overly-detailed. Remember, whatever standards you adopt for yourself to follow will be those you are held to if the matter is ever reviewed. Keep discovery plans simple, broad and flexible.
Discovery plans and case management protocol should include the following ten items:
- A detailed map of the client’s IT infrastructure, including company and personal computers, onsite and offsite storage, PDA users and user policies, and related home computer use.
- A description of backup, storage and deletion policies and practices.
- Identification of all persons who may potentially have relevant information.
- A “litigation hold” order interrupting deletion policies and practices for relevant persons and resources.
- A list of all resources searched for relevant information, together with a list of potentially relevant resources not searched because of accessibility problems.
- A list of all search terms and methodologies used to search for relevant information.
- A list of all persons to whom discovery requests were circulated for review in advance of production.
- Policies to periodically monitor preservation compliance by the client and client’s agents.
- Policies to supplement discovery searches (and productions) when “red flag” information becomes known over the course of litigation that suggests new document resources or custodians need to be included in document production.
- A policy for counsel to re-check the current state of discovery plan compliance before signing additional discovery responses or pleadings or making important arguments in court.
Discovery teams should include:
- A client representative with detailed knowledge of the client’s IT systems.
- A client representative with detailed knowledge of the case who speaks in behalf of the client. (This person should be someone other than client’s IT representative.)
- A representative of the client’s in-house legal staff if such a staff exists.
- An attorney or consultant for outside counsel who can communicate effectively about IT issues and their legal implications.
- An attorney from the outside litigation team who speaks in behalf of lead counsel.
Remember: one of the big differences between discovery in the electronic era compared to the paper era is the constantly-changing state of information potentially discoverable. Indeed, the single biggest change in litigation practice necessitated by electronic discovery may be the need to constantly check and re-check the accuracy of information that forms the basis of a case before signing pleadings or making arguments based on the assumption of certain facts.
Any good faith effort by Qualcomm's attorneys to re-check (and correct) the accuracy of information it proffered to the court would itself have avoided the problems that Qualcomm and its outside counsel now find themselves in.
This blog analyzes e-discovery decisions & trends in Los Angeles area federal and state courts. It is written by 