10 January 2008

Cyberspace February 2008

Knowing your responsibilities

The obligation to provide discovery has existed for many years, and it has taken on a new dimension with the advent of computer records. If you're not particularly technology aware then you may find yourself and your client missing discoverable documents, which may lead to some hot water. In Qualcomm v Broadcom (USDC, 05cv1958-B (BLM)) the court ordered sanctions against the plaintiff, as well as referring six of its lawyers to their Bar Association for failing to disclose some electronic documents that they came across during the proceedings.

The judgement referred to above was in relation to applications made after the substantive trial. The history was that a lawyer for Qualcomm was preparing depositions and searched for documents on a witness's laptop. He found some highly relevant emails that had not been discovered, and chose not to discover them. The firm also did not search certain email archives, and in those that were searched, they did not search using certain keywords (that were significant). The attorneys ended up apologising to the judge
"for not having discovered these documents sooner and for asserting positions that [they] would not have taken had [they] known of the existence of these documents."

A few months later Qualcomm searched the email archives of 21 employees and located more than 46,000 documents (300,000 pages), which had been requested but not produced in discovery. It kept searching and found even more documents ... The court ultimately drew very adverse inferences, awarded costs (unusual in the USA) of USD$8.5m, and made some very instructive comments:

"The Committee’s concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client’s custody and control. For the current “good faith” discovery system to function in the electronic age, attorneys 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. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client’s or attorney’s discovery obligations."

Qualcomm's attorneys kept good records of which computers were searched, and what the search terms were. However, the court noted that several searches were conducted late in the proceedings and "the fact that Qualcomm did not perform these basic searches at any time before the completion of trial indicates that Qualcomm intentionally withheld the documents" (one of several adverse inferences drawn). Another adverse inference was
"Qualcomm’s claim that it inadvertently failed to find and produce these documents also is negated by the massive volume and direct relevance of the hidden documents."

The Court found
"it likely that... one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit."

In addition to the disciplinary referral, the Court ordered the lawyers involved to prepare (supervised by the Court) a lengthy document setting out a detailed analysis of why it all occurred and how it could have been prevented. It also noted that it did not impose a fine on them partially because their client may look to them for compensation.

While writing this column I had a meeting with another lawyer in my firm to discuss electronic discovery obligations in a new matter, and it took over an hour just to outline the important issues. Take care to either get educated, or consider retaining an expert to deal with electronic discovery.

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