Here is a post from the Electronic Discovery Law Blog that describes a very recent Order from the U.S. District Court for the Southern District of California that imposed a penalty of more than $8.5 million in attorneys’ fees on Qualcomm for what that court determined was the failure of both in-house and outside counsel to produce tens of thousands of documents that had been requested in discovery–which failure was not revealed until the middle of trial. It gets worse. The court also ordered that the attorneys send a copy of the Order to the California State Bar for investigation of possible ethical violations. Ouch.
There is still more. The court also ordered the attorneys involved to participate in a customized program with the goal of developing a protocol to avoid such problems in the future. Specifically, the court described it as the Case Review and Enforcement of Discovery Obligations (“CREDO”) program, and the
protocol must include a detailed analysis (1) identifying the factors that contributed to the discovery violation (e.g., insufficient communication (including between client and retained counsel, among retained lawyers and law firms, and between junior lawyers conducting discovery and senior lawyers asserting legal arguments); inadequate case management (within Qualcomm, between Qualcomm and the retained lawyers, and by the retained lawyers); inadequate discovery plans (within Qualcomm and between Qualcomm and its retained attorneys); etc.), (2) creating and evaluating proposals, procedures, and processes that will correct the deficiencies identified in subsection (1), (3) developing and finalizing a comprehensive protocol that will prevent future discovery violations (e.g., determining the depth and breadth of case management and discovery plans that should be adopted; identifying by experience or authority the attorney from the retained counsel’s office who should interface with the corporate counsel and on which issues; describing the frequency the attorneys should meet and whether other individuals should participate in the communications; identifying who should participate in the development of the case management and discovery plans; describing and evaluating various methods of resolving conflicts and disputes between the client and retained counsel, especially relating to the adequacy of discovery searches; describing the type, nature, frequency, and participants in case management and discovery meetings; and, suggesting required ethical and discovery training; etc.), (4) applying the protocol that was developed in subsection (3) to other factual situations, such as when the client does not have corporate counsel, when the client has a single in-house lawyer, when the client has a large legal staff, and when there are two law firms representing one client, (5) identifying and evaluating data tracking systems, software, or procedures that corporations could implement to better enable inside and outside counsel to identify potential sources of discoverable documents (e.g. the correct databases, archives, etc.), and (6) any other information or suggestions that will help prevent discovery violations.
The blog post summarizing the case, linked above, noted that the court was not done yet. The court wanted to follow-up. Specifically:
To facilitate development of the CREDO program, the court ordered the attorneys to meet in the court’s chambers at 9 a.m. on January 29, 2008. The court further ordered that, at the conclusion of the process, the participating attorneys will be required to submit their proposed protocol to the court for approval, at which time the court may require further revisions. Once the protocol is approved by the court, each of the attorneys will be required file a declaration under penalty of perjury affirming that they personally participated in the entire process that led to the CREDO protocol and specifying the amount of time they spent working on it.