Post Process

Everything to do with E-discovery & ESI

Posts Tagged ‘Qualcomm’

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, 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.

Posted in Articles, Discovery, Duty to Produce | Tagged: , | Leave a Comment »

E-discovery Pitfalls: What a Tangled Web we Weave…

Posted by rjbiii on September 30, 2007

The second installment in our series on E-Discovery Pitfalls. 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 bar 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, an attorney doesn’t actually physically collect the data, so counsel’s responsibility is far from absolute.

How did we get here? To find out, let’s reboot and start from the beginning.

Read the rest of this entry »

Posted in E-Discovery Pitfalls, Sanctions | Tagged: , | 1 Comment »

Case Blurb: Qualcomm; Awarding Attorney’s Fees and other Legal Costs for litigation misconduct in patent cases

Posted by rjbiii on September 29, 2007

Under 35 U.S.C. § 285, “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285 (West 2007). In patent infringement cases, the Federal Circuit has held that an award of attorney fees under Section 285 involves a two-part determination: (1) “a district court must determine whether the prevailing party has proven an exceptional case by clear and convincing evidence,” a factual determination that the Federal Circuit reviews for clear error; and (2) “if the district court finds the case exceptional, it must then determine whether an award of attorney fees is appropriate,” which the Federal Circuit reviews for abuse of discretion. Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1380 (Fed.Cir.2006).

The Federal Circuit has further held that the trial judge is in the best position to weigh the relevant considerations for exceptional case, “such as the closeness of the case, the tactics of counsel, the flagrant or good faith character of the parties’ conduct, and any other factors contributing to imposition of punitive sanctions or to fair allocation of the burdens of litigation.” Id. “[L]itigation misconduct and unprofessional behavior are relevant to the award of attorney fees, and may suffice, by themselves, to make a case exceptional.” Waner v. Ford Motor Co., 331 F.3d 851, 857 (Fed.Cir.2003) ( quoting Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1034 (Fed.Cir.2002)).

The prevailing party may prove exceptional case in a patent infringement suit by showing: “inequitable conduct before the PTO; litigation misconduct; vexatious, unjustified, and otherwise bad faith litigation; a frivolous suit or willful infringement.” Phonometrics, Inc. v. Westin Hotel Co., 350 F.3d 1242, 1246 (Fed.Cir.2003) ( quoting Epcon Gas Sys., 279 F.3d at 1034). When the patentee is “manifestly unreasonable in assessing infringement, while continuing to assert infringement in court, an inference is proper of bad faith, whether grounded in or denominated wrongful intent, recklessness, or gross negligence.” Id. ( quoting Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 811 (Fed.Cir.1990)).

Qualcomm Inc. v. Broadcom Corp., 2007 WL 2261799 (S.D. Cal. Aug. 6, 2007).
Full Order is found here, courtesy of K&L Gates.

Posted in 9th Circuit, Case Blurbs, Judge Rudi M. Brewster, Legal Fees Awarded, S.D. Cal., Sanctions | Tagged: , , | Leave a Comment »