By Mary Mack
No resolution yet for the attorneys in the cross hairs for potential sanctions in the Qualcomm v. Broadcom aftermath. From all accounts, Southern District of California U.S. Magistrate Judge Barbara Major left no room to guess about her opinion about the conduct generally.
How to punish? Who to punish? These are the questions Judge Major will be considering before making her ruling. When this ruling is issued, it has the potential to shape attorneys' behavior around e-discovery for years to come.
There will also be impacts around privilege, the contracts (both formal and understood) between client and counsel. In corporations across America, more discovery response teams will be formed. Processes will be established and documented. And in the meantime, cases that started years ago with the old way of ignoring e-discovery until the last minute will mature into the trial phase.
The judge has taken the declarations and arguments under advisement with no timeframe for her decision.
The judge said she was struggling to understand how Qualcomm and its lawyers committed "the fundamental and monumental error" of failing to share more than 200,000 pages of documents with Broadcom until after trial. Neither lawyers for Qualcomm nor the 19 attorneys it hired had clear answers.
What process needs to be followed before sanctioning an individual attorney? Is it "due process"? What about judicial discretion that we hear so much about at conferences when sitting judges talk about the so called Safe Harbor protection against sanctions in new amendment to the Federal Rules of Civil Procedure (FRCP) 37(f)? The attorneys for outside counsel are clearly setting up their clients for appeals as they raise the issues of fairness, not being able to fully defend and point the finger at their former client, standing firmly behind the privilege shield.
"We are prevented from providing exculpatory information — conversations and transactions that are highly probative," Noonan said. "It would be terrible for an attorney to be sanctioned without having the ability to explain fully."
What standard of evidence needs to be there before a judge can sanction?
“The standard for imposing sanctions in a disciplinary hearing is there must be clear and convincing evidence of bad faith,” said Richard Prendergast on behalf of Cupertino attorney Craig Casebeer. “I don't know how you can satisfy that standard… when some of that evidence is hidden behind the curtain of attorney-client privilege.”
What due diligence must be done before bringing suit?
After all the arguments attempting to mitigate and explain why attorneys may have neglected to do necessary searches for evidence, Major didn't seem moved from the stance she began with.
Close to the end of the hearing she noted that once the e-mail evidence came up at trial, "Qualcomm comes up with the documents in no time flat."
"And they filed this suit," she said. "That means they had any number of months before [filing it] to search their own records."
Discussing the business impact on Qualcomm regarding other high profile suits, Reuters reported:
In the wake of the misconduct finding, Qualcomm abruptly dismissed two other patent cases against Broadcom that were set to be heard by Brewster — actions that raised Broadcom's suspicions.
"The reason is… could this be this massive one-time accident or is this a pattern of conduct?" David Rosmann, Broadcom legal counsel, told Reuters. "I think the courts need to be aware of this behavior."
Brewster, the federal court judge who issued the ruling on the patent issue and referred the sanctions issue to Major, clearly needs no "notification."