You may have heard about the famous Qualcomm eDiscovery case - - the one in which lawyers for patent infringement plaintiff Qualcomm Incorporated failed to turn over emails and other records about the company's participation in standards processes.  The emails were relevant to the claims in the case, because participation in the standards group at issue would have undercut Qualcomm's case.  Back in 2007, the United States District Court for the Southern District of California imposed sanctions on Qualcomm.  During the 2007 proceedings, outsiders did not know exactly why the company failed to turn over the emails, but the sense of it was that Qualcomm and its counsel blamed each other for the failure. 

Now, more than two years later, the sanctions battle is not done.  The court will make a new ruling on sanctions.  In the meantime, recent filings with the Court shed some light on the chronology of events that led to the failure to disclose the emails.  They do confirm that the inside and outside lawyers blame each other for the failure to disclose the records. 

Click here for Qualcomm's Opening Pre-Hearing Brief.  Click here for one of the briefs from one of the outside lawyers, Lee Patch, entitled "Reply Brief of Responding Attorney Lee Patch in Response to Order to Show Cause."  These are just two of the many documents filed in the case concerning the sanctions issue. 

The Qualcomm brief is a detailed recitation of the events leading up to the dispute about the emails.  Qualcomm quotes one of its outside lawyers as saying that the discovery failure was due to lapses in memory and misunderstandings between Qualcomm and outside counsel, and that outside counsel could have been more skeptical of information coming back from Qualcomm. 

The Patch brief defends Mr. Patch's conduct, saying that he asked the right questions of Qualcomm and the company told him that it had not been involved in the standards group.  As a result, he claims that he had no reason to believe that the company had extra records about the standards group that it failed to disclose. 

One of the lessons to take away from the disputes is that outside counsel and inside counsel and client personnel need to have clear communications about who, within the company, has what information, and where the information resides.  Courts have no patience for litigations who fail to turn over requested highly relevant information.  And it is better to avoid sanctions and court defeats by clear communications up front, even though upfront communications take time, effort, and resources.  The Qualcomm sanctions battle is not over yet, but at least we can learn lessons from the events leading up to it.

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

(650) 917-8045