Electronic Discovery Issues Lead Once Again to “The Law of Unintended Consequences”
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For those who thought Zubalake would have all but eliminated major E-Discovery stumbles, the Qualcomm v. Broadcom decision serves as another nightmarish reality check for litigators. In January, Qualcomm was smacked with over $8 Million in fines and their attorneys were referred to the state bar for potential ethics violations related to their reported mishandling of Electronically Stored Information (ESI) related to the case. The primary source of embarrassment? You guessed it, Email. Qualcomm attorneys were criticized for failing to produce emails during discovery that would have shed significant light on the dispute over patents under dispute. The Court claimed attorneys engaged in “deliberate ignorance” related to a number of emails that ultimately shed an exposing light on the facts of the case.
The magistrate judge in this case stated that…
“the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm’s document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation”
Perhaps the most ironic twist to this case is the reality of just how easy it would have been to identify these emails and how obvious it now seems that they would have been examined during discovery. A simple search of only a few computers in the possession of the key players in the case would have produced the emails through basic key word searching.
- Be proactive. Always perform at least a basic forensic analysis and key word searching of the primary custodians of ESI during the preliminary fact finding stage of your case
- Know your client’s IT environment. Appoint a senior-level member of your client’s management team as the central point of contact for identifying relevant ESI
- Educate your client’s on the pitfalls of discovery breaches and make sure attorneys involved in important litigation are mindful of their duty of conducting a “reasonable inquiry” for potentially responsive ESI.
Bottom Line: In this age of discovery of electronically stored information, the courts expect openness, honesty and co-operation…and they are serious.