Qualcomm Inc. v. Broadcom Corp, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

In a possible response to the question that I posed in my last post of whether or not the Zubulake rulings are still relevant, Broadcom has recently been awarded over $8 Million in Attorneys Fees and Qualcomm’s Lawyers have been referred to the California State Bar Due to Discovery Misconduct.

This may be the answer to whether Zubulake continues to have "teeth" in regards to the responsibilities/critieria of legal teams to produce or not produce ESI. Or, it may just be an example of the ignorance and/or arrogance on the part of the Qualcomm legal team? However, it is hard to believe that anyone involved in such an important case would be ignorant to the requirements set down by Zubulake.

This case, which is rapidly taking on the legendary status of Zubulake, involved the failure by Qualcomm’s attorneys to turn over 46,000 e-mails, many of which were deemed highly relevant to Broadcom’s core defenses. Qualcomm brought the suit in 2005, alleging Broadcom’s infringement of several of Qualcomm’s patents. One of Broadcom’s key defenses hinged on whether Qualcomm participated in a Joint Video Team (“JVT”) in 2002 and early 2003.

Broadcom argued that evidence of such participation would show that the patents at issue were unenforceable due to waiver. Throughout the case, Qualcomm’s lawyers repeatedly argued (and its witnesses testified in depositions) that Qualcomm did not participate in the JVT in the key time period. As the case progressed, however, e-mails surfaced that suggested that Qualcomm did, in fact, participate in the JVT in 2002. While preparing for trial, one of Qualcomm’s attorneys found an e-mail sent to one of Qualcomm’s witnesses in 2002 that welcomed her to a mailing list related to the JVT. That attorney then searched the witness’ laptop and found 21 other e-mails, some from 2002, where the parties discussed issues related to participation in the JVT. None of these e-mails had been produced to Broadcom.

Nevertheless, Qualcomm’s trial team decided not to produce the e-mails, claiming that they were not responsive to the discovery requests. During trial, Broadcom discovered the existence of the e-mails and Qualcomm finally produced them. Ultimately, Broadcom learned that Qualcomm had more than 46,000 e-mails responsive to the discovery requests that it failed to produce.

On January 7, after a number of oral arguments and an initial ruling by the court awarding attorneys’ fees, the court ordered Qualcomm to pay Broadcom over $8.5 million in attorneys’ fees (with credit for amounts already paid in response to a previous order) and referred a number of Qualcomm’s attorneys to the State Bar of California for an investigation in to possible ethical violations.

Labels: Broadcom, Discovery, email, ESI, Litigation, Qualcomm, Sanctions, Zubulake

posted by Charles Skamser @ 10:03 PM