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.
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.