Post Process

Everything to do with E-discovery & ESI

Qualcomm mess ‘contaminates’ Day Casebeer partner

Posted by rjbiii on October 4, 2007

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.

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