eDiscovery Pressure on Trial Lawyers, which Translates to Their Clients

The lesson from Norwalk is reinforced by another dramatic case, which shows how harsh a court can be on an organization that cannot produce its e-mail records. In a patent lawsuit with its rival Broadcom, chip-maker Qualcomm and its lawyers are living an e-discovery nightmare. From Qualcomm’s perspective, the problem stems from the company’s inability easily to identify all the relevant e-mail records.

Early in the lawsuit, Qualcomm searched its records and turned over what it believed were the relevant e-mails. But later, under cross-examination at trial, its engineer referred to some e-mails that had not been turned over. Qualcomm lost the lawsuit, but the court was not finished with Qualcomm. The court was dismayed that the e-mails referenced by the engineer were not disclosed in the original e-discovery phase of the lawsuit. The court wanted to re-examine the question whether Qualcomm had disclosed all e-mail as originally required in the rules of litigation.

The court ordered Qualcomm to sift through its records again. This time Qualcomm found more records that should have been disclosed in the original e-discovery. The court felt Qualcomm deserved punishment. The court’s reasoning was that if parties fail to find and divulge electronic records early in litigation, then lawsuits drag out for longer than necessary. So the court ordered Qualcomm to reimburse all of Broadcom’s attorneys’ fees and costs.

But it was not finished. The court felt so strongly about enforcing the rules of e-discovery that it ordered the 14 lawyers who had worked on the case for Qualcomm to appear at a hearing to explain each one why he or she should not be sanctioned personally! Don Clark, “Recovered Emails Bedevil Qualcomm in Court,” Wall St. Journal, Oct. 9, 2007, B1. This is an eye-catching event. It informs lawyers and law firms that if they don’t ensure strict compliance with e-discovery by their clients, then they themselves may be forced to pay fines, endure public censure or even risk the revocation of their bar licenses.

The implication is that in all litigation, all enterprises need organized, searchable records.