Qualcomm mess ‘contaminates’ Day Casebeer partner

We posted an extensive discussion of the Qualcomm case in our second installment of e-discovery pitfalls. Now, law.com posts an article stating a Day Casebeer partner is “highly contaminated.”

In the fallout from a high-stakes discovery meltdown involving Qualcomm Inc., Day Casebeer Madrid & Batchelder partner Lee Patch has emerged highly contaminated.

According to fresh declarations filed Wednesday, Patch signed off on a junior Day Casebeer partner’s decision to withhold 21 potentially damaging e-mails from Qualcomm’s litigation opponent, Broadcom Corp.

But when the trial judge asked Patch about the e-mails days later, Patch created the impression he did not know they existed, his declaration said. Patch also told the judge that neither he, nor his colleagues, had made any determination about whether the e-mails should be turned over.

If you don’t think this is serious, take some time and read EAT WHAT YOU KILL, by Milton Reagan, Jr., describing the fall (and incarceration) of a prominent N.Y. state bankruptcy attorney, for basically lying to the court (by omission).
Judges hate it if they think they’re being lied to. No allegations of misconduct have been proven, and everyone deserves due process, so this isn’t to say that Mr. Patch or his associates has been proven to acting unethically or unlawfully. To continue:

Bier and Mammen told Patch they did not believe the e-mails were responsive. Patch concurred — but he never read the e-mails himself, his declaration says.

Day Casebeer therefore did not notify Broadcom of the e-mails. But 10 days later, a Qualcomm employee mentioned them on the stand during cross-examination.

Ultimately over 200,000 pages of relevant documents were found that hadn’t been produced. This seems to be an extreme case, but what it does illustrate (or will illustrate, should serious sanctions be the result result) is that in this age of computer forensics, non-deleted deleted files, and easy distribution, it isn’t worth the risk for attorneys to conspire to conceal evidence, no matter how harmful it may be for the client.

Qualcomm disaster: The e-Discovery Worst Case Scenario?

Law.com has posted an article in which a team of lawyers is now trying to justify their management of discovery project gone wrong:

Attorneys who once represented Qualcomm Inc. in its ill-fated federal patent case against Broadcom Corp. have asked a judge to pierce their client’s privileged communications.

With the threat of formal sanctions bearing down on them, lawyers at Heller Ehrman and Day Casebeer Madrid & Batchelder — Qualcomm’s former litigation counsel — are asking for a rare exception to privilege so they can explain to the judge how their side failed to produce hundreds of thousands of relevant documents during discovery in the San Diego case.

Qualcomm, citing privilege, has refused to produce any evidence about the discovery error. Magistrate Judge Barbara Major has ordered the attorneys to show cause at an Oct. 12 hearing as to why they should not be sanctioned. Now, in advance of the hearing, many of the outside counsel have hired their own lawyers and have been trying to find a way to explain what happened.

(emphasis added)

Obviously, this is an ugly situation for all parties, and it looks to get uglier. Lifting privilege is one of those actions necessary to examine an attorney’s management of a case, and is an element in malpractice suits. All the elements of a worst case scenario seem present with respect to a lawsuit: unhappy clients, their former attorneys who find themselves threatened by a deadly triple-threat of sanctions, malpractice actions, and state bar proceedings. Now, whether the attorneys are responsible or not is something that will only come out with further examination, although there is ample case law that states that ultimately the buck stops with counsel.

However, there are several reasons why the lawyers may not be responsible. An attorney doesn’t actually physically collect the data. Sometimes attorneys aren’t consulted during the early stages, and the client’s IT group, records management department, or in-house counsel may supervise the identification, preservation, and collection processes. This arrangement might lead to the vindication of the law firms in question, or at least a sharing of the liability.

Another big question: What is the vendor’s role in the process and its liability here?

Post Process intends for this case to be next in its “Pitfalls of E-Discovery” series (click here for our first installment). Be patient though, as it will take us a little time to untangle what may be a complex web.