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FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.
In early 2008, a federal magistrate in San Diego ordered significant discovery sanctions to the tune of $8.5 million dollars against the plaintiff in the Qualcomm Incorporated v. Broadcom Corporation case; which deals with discovery conduct.
The magistrate found that a large quantity of documents had been suppressed from discovery. The attorneys who were sanctioned objected and a federal judge ruled that they had a due process right to defend themselves and that they should not be prevented from explaining their own conduct in the discovery process because of the attorney-client privilege.
Now more than two years later, and after apparent negative impact on some of their careers, the magistrate on remand has decided that they should not be sanctioned. Still, the magistrate's most recent order should be a warning to others about how to guide their discovery conduct.
The magistrate the second time around remained emphatic that "there is still no doubt . . . that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and [the plaintiff's] employees." The magistrate found that there were "ineffective and problematic interactions" between the plaintiff's employees and most of the outside attorneys, and that the attorneys "made significant errors to comply with their discovery obligations." These errors contributed to a "massive cache of critical documents remaining undiscovered."
Fundamentally, the magistrate remained critical of "an incredible breakdown in communication." This breakdown "permeated all of the relationships," including plaintiff engineers and in-house legal staff, between plaintiff employees and outside counsel, and between outside counsel, according to the magistrate. In a nutshell, the magistrate remained convinced that the legal issues and proper document collection practices were not explained to the appropriate personnel at the outset of the case, and that there was not a sufficient effort made to understand where responsive information was located for production in discovery.
Ultimately, the magistrate found that while "significant errors" were made by some of the attorneys, there was insufficient evidence to prove "bad faith." Thus, she declined to impose sanctions against them.
So, what is to be learned from this case?
One lesson is that it is critical for lawyers and their clients to be on the same page at the outset of the discovery process. They need to communicate properly and fully in terms of understanding the issues in a case and the potential sources of information to be produced. There must be clarity and thoroughness on the front-end to avoid problems on the back-end.
Another lesson is that the threat and potential of discovery sanctions possibly can drive a wedge between attorneys and their clients. If the discovery ship starts going down, the client and the attorneys might have different versions of events in terms of fault for discovery abuse. The so-called "self-defense" exception to the attorney-client privilege, for example, may allow attorneys to try to explain that they did their level best in discovery to obtain complete client cooperation.
A further lesson is that the issue of discovery sanctions can take on a life of its own. Indeed, in the Qualcomm Incorporated v. Broadcom Corporation case, the discovery proceedings created another track of litigation apart of the actual merits of the case. Whether all of the relevant information was produced became a hugely litigated issue that spanned years. This not only adds expense and distraction from the core issues, it can have a major impact on the lives of the people involved.
Not only should attorneys and their clients be on the same page with full communication and thoroughness at the outset of discovery, there should be constructive and productive dialogue with opposing counsel so that agreements can be reached wherever possible. Meaningful agreements can be reached on search terms, custodians of documents, servers, databases, and equipment to be searched. And when there is agreement and follow through, disputes will be avoided and the discovery problems that can ensue will not occur.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at firstname.lastname@example.org. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.