As I’ve said, there will be lots of commentary about the Qualcomm v. Broadcom case from Americans, and I’d rather leave it to them than wade in myself. So this is just a teaser for those who are unfamiliar with the issue. I’ve also provided some links below if I’ve managed to pique your interest.
The order, released on Monday by a California court, brought an end to an intense dispute about failure to produce relevant e-mails that began this January 26th when a witness for Qualcomm in a patent dispute admitted that she had received e-mails from a mailing list (called the “avc_ce” list) which was evidence of Qualcomm’s participation in a standards setting body (called “JVT,” on the “H.2264” standard) before a specific point in time. In the Court’s words, Qualcomm’s assertion that it had not participated in the JVT was “vital” to its success in defeating Broadcom’s waiver argument, and two days after the admission was made a jury returned an advisory verdict that claimed two of Qualcomm’s patents were unenforceable because of waiver.
After the trial Broadcom asked Qualcomm to conduct additional searches to determine the scope of its discovery violation, and eventually Qualcomm agreed to search the current and archived e-mails of its five witnesses based on the terms “avc_ce,” “JVT,” and “H.2264.” Then, in April, Qualcomm’s general counsel and the lead counsel at trial wrote the trial judge to apologize for failing to produce relevant documents.
Qualcomm eventually located over 46,000 responsive and undisclosed records by searching the e-mail archives of 21 employees. Then…
- …Broadcom filed a motion for sanctions
- …Qualcomm’s lawyers were ordered to show cause why they should not be sanctioned
- …Qualcomm came into conflict with its lawyers about who was responsible and refused to waive its solicitor-client privilege for use by the lawyers in the show cause
- …which all led to the recent order.
This week Magistrate Judge Barbara L. Major held that both Qualcomm and six of its attorneys committed misconduct, focusing on the failure to conduct an e-mail search on obvious custodians on obvious terms on an issue that was obviously central to the case. She ordered Qualcomm to pay over $8.5 million for Broadcom’s attorneys’ fees and other litigation costs (less costs ordered to be paid earlier), referred six lawyers on Qualcomm’s litigation team to the State Bar of California for investigation and ordered these lawyers and some of Qualcomm’s in-house lawyers to participate in a program to craft a model case management protcol to prevent similar events in the future. It appears this protocol – deemed the “Case Review and Enforcement of Discovery Obligations” or “CREDO” protocol – will become a public source of guidance. The Court said:
While no one can undo the misconduct in this case, this process, hopefully, will establish a baseline for other cases. Perhaps it also will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena. To the extent it does so, everyone benefits – Broadcom, Qualcomm, and all attorneys who engage in, and judges who preside over, complex litigation. If nothing else, it will provide a road map to assist counsel and corporate clients in complying with their ethical and discovery obligations and conducting the requisite “reasonable inquiry.”
Here is a copy of the order and here are some links to the early comments and articles: