Fiery disputes about the failure to produce relevant e-mails were non-stop in Qualcomm v. Broadcom. The judge found that Qualcomm’s lawyers misrepresented (legalese for “lied about”) the existence of certain electronic documents pertaining to video compression technology. The court pointed to Qualcomm’s lawyers adamantly maintaining that no Qualcomm employee had sent e-mail to the Joint Video Team (JVT) standards-setting organization (SSO). On one of the last days of the trial, one of Qualcomm’s own witnesses testified that she had e-mails that Qualcomm had claimed did not exist. Like the Titanic, Qualcomm’s case started sinking. The trial ended, but Broadcom’s lawyers were able to force the production of those e-mails four months later plus another 200,000 relevant e-mails and documents. In addition to losing its case, the very angry court invalidated Qualcomm’s video-related patents and ordered them to pay Broadcom’s attorney fees, court fees, expert witness fees, and other litigation costs — roughly $8.6 million. The court then ordered Qualcomm’s lawyers to give convincing arguments as to why additional sanctions shouldn’t be imposed. Then the judge in a never-seen-before-move sanctioned Qualcomm’s six outside lawyers and recommended that the California State Bar take disciplinary actions against them.
Three warnings made clear by this case are
Electronic discovery misconduct is extremely expensive and stupid.
Electronic discovery can change the outcome of a case.
Electronic discovery misconduct by attorneys might subject them to discipline affecting their license to practice.
Top lessons from the Qualcomm v. Broadcom case are
Prepare your expert witness and make sure your expert can answer questions.
Know what your expert witness knows. Hearing it for the first time in court is dangerous.
Design, validate, and make sure you understand the data map to minimize the risk of failing to identify and search storage media containing responsive ESI.
Consult external and objective IT experts for their opinions and help in explaining technical issues.