Is Qualcomm an isolated incident?
I was listening to a commentator the other day say that the issues raised in the recent Qualcomm case were isolated in the sense that they were not likely to happen very often in the real world and could be explained by the circumstances of the case including various factors such as:
First - It was a patent case, and patent litigators are a very cut-throat lot when it comes to litigation.
Second - It happened during the heat of the trial and was not a decision made in the cool and calculating world of pre-trial discovery.
A word about Qualcomm if you don’t know the facts. While the fight continues, (and goes on and on and on…now the sanctions against the attorneys have been reversed and remanded so they can use the “self defense” exception to privilege to defend themselves against Qualcomm’s self serving declarations) the Qualcomm was ordered to pay over $8 million for “monumental and intentional” discovery violations.
Qualcomm failed to produce tens of thousands of documents requested in discovery and six of Qualcomm’s outside attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.”
Unfortunately, the attorneys “then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.” The Court then set out an entire program for the parties to follow to ensure that the problem was corrected and wouldn’t happen again.
I don’t know about you, but I’ve been involved as a contract attorney in document reviews where questionable decisions were made. Some were more egregious than others. I imagine there’s still a legal team out there who may want to print out electronic documents to paper to give to the other side. Maybe there’s a legal team out there who thinks it’s a good idea to look through email and produce only responsive documents without regard to their sources or attachments.
Have you seen a recent example of a decision in a document review that could possibly lead to a Qualcomm type situation in a later courtroom showdown? Let’s try to keep this anonymous.