In yet another warning about the pitfalls of e-discovery, a judge from the Southern District of California has sanctioned Qualcomm and several of its attorneys for failing to produce tens of thousands of relevant and responsive documents during its patent suit against Broadcom. The company and its lawyers apparently overlooked thousands of damaging emails during the e-discovery process, then sought to cover them up after they emerged at a critical point in the trial.
During discovery, Broadcom sought to support its waiver defense to Qualcomm's infringement claims by requesting the production of documents related to Qualcomm's participation in a standards-setting body for video coding. Qualcomm responded with 1.2 million pages of "marginally relevant documents," according to the judge. Based on the documents it produced, Qualcomm argued during the trial that it had not participated in the standards-setting body, and thus it had not waived its claims to the patents in question.
While preparing a witness for testimony, however, one of the sanctioned attorneys discovered an email indicating that the witness had actually participated in a mailing list related to the standards body. A search of the witness' computer using the title of the mailing list revealed 21 further emails discussing issues related to the patents in question. Qualcomm had not searched the witness' computer during the e-discovery process, so it had not produced any of these emails during discovery. The trial team decided not to produce them now.
In fact, trial counsel went so far as to deny the existence of the emails to the judge, and tiptoed around the issue by asking the witness pointed questions that avoided the issues of the emails' existence. Broadcom's counsel wasn't so cooperative, however, and soon elicited responses from the witness indicating that she had received emails from the mailing list. Qualcomm then turned over the newly discovered emails, even while arguing that they were not responsive to Broadcom's original production request.
After the close of trial, the jury returned verdicts in favor of Broadcom. The trial judge found that Qualcomm's "litigation misconduct" entitled Broadcom to attorney's fees, and referred the discovery issue to a new judge to rule on the issue of sanctions.
Thousands of Additional Documents
Following the trial, Qualcomm revealed that there were thousands of additional documents related to the patents and the standards-body - documents that undermined the arguments that Qualcomm's counsel made at trial. The documents resided on computers that Qualcomm never searched during e-discovery, despite the fact that several of the computers' users were key figures in the litigation. Qualcomm's general counsel uncovered these new emails through simple searches of the computers using basic keywords related to the mailing list, the standards-setting body and the standard in question.
The judge held that the sheer volume of the records in question - more than 46,000 emails and documents - ruled out the possibility that Qualcomm had inadvertently failed to produce the relevant information. Moreover, the judge continued, the ease with which the documents were eventually uncovered demonstrated that Qualcomm deliberately suppressed the documents and emails. The judge labeled Qualcomm's e-discovery efforts as deficient, stating that document investigations should always include "an analysis of the sufficiency of the search terms and locations."
The lawyers, wrote the judge, shared in the responsibility for the e-discovery fiasco. The judge opined that the attorneys must have suspected that Qualcomm possessed documents that would damage the case, yet they ignored the signs and remained deliberately ignorant. The judge stated that attorneys must always work with their clients to understand how and where electronically stored information (ESI) is maintained, and to figure out the best strategy for locating and analyzing relevant information. In addition, "[a]ttorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search," according to the judge.
For their misconduct, the judge imposed sanctions on both Qualcomm and its attorneys. The judge awarded Broadcom all of its attorney's fees and costs, but since the trial judge had already awarded Broadcom attorney's fees, the judge here reduced the sanction by any amount that Qualcomm had already paid to Broadcom. The judge referred the attorneys to the State Bar of California for an investigation and the possibility of further sanctions.
The sanction against Qualcomm doesn't actually constitute much of a punishment, despite the judge's excoriating language concerning the company's e-discovery transgressions. The trial judge had already awarded Broadcom its full attorney's fees for Qualcomm's numerous instances of litigation misconduct, so the company will not have to pay any money beyond what the trial judge had already ordered. Whether this is because the judge issuing the sanctions order did not consider the e-discovery violations as sufficient to warrant further payment, or whether it is because those e-discovery violations were just a drop in the bucket compared to Qualcomm's other misbehavior at trial, only the judge knows for sure.
The attorneys may end up bearing the brunt of the sanctions, depending on how the State Bar of California deals with its investigation into the violations. While the California Bar will not likely strip any of the attorneys of their license to practice law in the state, it may impose monetary sanctions and other disciplinary actions that will hit the attorneys harder, in relative terms, than the company they represented.
No matter what the outcome may be, Qualcomm and its attorneys clearly ignored their e-discovery responsibilities. Attorneys must educate themselves about their clients' IT systems and culture, as well as their business structures and practices. They must then identify the custodians for relevant information, determine the most effective search keywords and ensure that the investigations reveal all responsive data. What they find might damage their case, but it definitely beats a trip before the Bar.