Ride the Lightning

QUAKING IN THEIR ARMANI SUITS: LAWYERS WHO MISHANDLE ESI

August 17, 2007

August 29th is not shaping up as a good day for 14 lawyers involved in the Qualcomm Inc. v. Broadcom Corp. case. U.S. Magistrate Judge Barbara Major has ordered the 14 attorneys to show cause on August 29th why they should not be sanctioned for misconduct in their handling of electronic evidence in the patent infringment suit.  U.S. District Judge Rudi M. Brewster delivered a harsh assessment of the misconduct in his original August 6th opinion in the case. He found that Qualcomm’s attorneys had removed e-mails from files before preparing employees for testimony and concluded that "Qualcomm counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial and post-trial before new counsel took over lead role in the case on April 27, 2007."  The court noted Qualcomm’s production of over 200,000 pages of highly relevant e-mails and electronic documents four months post-trial. Ken Withers, a noted expert in federal procedure, calls the misconduct "in a class by itself" and concludes, "This seems to be a concerted effort to thwart the court’s ability to find the truth." Ouch. Magistrate Judge’s Major’s August 29th hearing will give the attorneys a chance to explain their actions before sanctions are considered. Nine of the attorneys are from the Cupertino firm of Day, Casebeer, Madrid & Batchelder. The other five attorneys are from the Heller Ehrman law firm. As Ricky Ricardo would no doubt note to the lawyers, "You’ve got some ‘splaining to do." Don’t change that dial – I’ll be back to report on the outcome.

The Show Cause order in the case may be found at http://www.klgates.com/files/upload/eDAT_Qualcomm_8_13_07_Show_Cause_Order.pdf

The original opinion may be found at http://www.klgates.com/files/upload/eDAT_Qualcomm_8_6_07_Order_on_Remedy.pdf

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