January 9, 2008
Ethics Of Document Production
The decision of the United States District Court for the Southern District of California in the Qualcomm discovery sanctions matter is linked here. In sum, the court imposed sanctions and referred six attorneys to the State Bar of California for possible disciplinary action where the plaintiff client had failed to produce emails that were clearly requested in discovery and witnesses had testified falsely on an issue that "became crucial to the...litigation." A witness had identified 21 seperate emails that cast doubt on the client's key contention but counsel did not produce the emails or conduct a further search. After the trial, Qualcomm's general counsel "admitted Qualcomm had thousands of relevant unproduced documents and that their review of these documents 'revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm's behalf at trial and in the equitable hearing following trial' " There were over 46,000 such documents.
"For the current 'good faith' discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents."
"It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm's document search and production...the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm's document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation."
The court awarded the defendant "all of its attorneys' fees and costs incurred in the...litigation." Because such costs had previously been awarded, Qualcomm receives "credit towards this penalty for any money it pays to [defendant] to satisfy the exceptional case award." The court referred six attorneys to the bar rather than impose monetary sanctions: "the Sanctioned Attorneys assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs...the Sanctioned Attorneys then used this lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury." (Mike Frisch)
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