We previously noted here a recent decision in the Qualcomm case by a Federal Magistrate Judge in California that delivered a living nightmare to a group of lawyers who found themselves on the wrong side of an electronic discovery problem on the last day of a long trial (read: witness revealed that large numbers of emails had not been produced).
Here is a recent online article by John Tredennick that extracts five (5) lessons that he believes every lawyer (especially litigators) should learn from the case. He explains them in detail but I will just list the "lessons" below along with selected excerpts from the longer explanations under each of the 5 points he makes. The court order is as painful to examine as a horrific train wreck, as it is every litigator’s nightmare. Here are the lessons from the case as explained in the article:
1. You Better Check Your Witnesses’ Computer Before Allowing Him/Her to Testify.
Were the lawyers required to audit Qualcomm’s collection work or supervise it. According to the court, the answer is yes.
Opinion at 27 lines 3-9.
2. It Doesn’t Help to be a Lowly Associate
The team working on this phase of discovery included a senior partner, a senior associate and an associate. The associate’s attorney argued that he raised concerns about the thoroughness of the production to his superiors. The court cut him no slack.
Opinion at 27 note 10.
3. Whatever You Do, Don’t Be Cutesy When You Question Your Witnesses.
This case unraveled on the last day of trial. That’s when Qualcomm witness Viji Raveendran admitted on cross that there were relevant emails showing Qualcomm participation in the JVT. Patch asked Raveendran whether “she had ‘any knowledge of having read’ any emails” from the JVT mailing list. Opinion at 9, line 25-26. She conveniently answered “no,” maybe because she did not call actually reading them. However, she clearly had received them, which was more than enough to kill the case for legal purposes.
On cross, and maybe with a lucky shot, opposing counsel asked her whether she had ever received emails of this type. That’s when the bottom fell out. She admitted truthfully that she had. She also noted that they were pulled from her production by the attorneys and all heck broke out. Patch was nailed for “carefully [tailoring] his questions to ensure that Raveendran did not testify about the unproduced emails.” Opinion at 30, line 10-12.
What do you make of this? Arguably Patch asked Raveendran a question that she could answer honestly in a way that helped his case. He did not go further and have her clarify the limits of her answer; he left that work for opposing counsel to do or not do.
The lesson is this: Don’t be cute with testimony but if you get caught don’t try to bull your way out of it. When the game’s up, stop playing.
4. The Smarter They Are, The Harder They Fall
The warning here is that the big firm pedigree can cut both ways. Although there was no evidence that any of the lawyers were aware of the Qualcomm documents until the end, that didn’t stop the court. Laying out each attorney’s work and educational background, the court essentially said they were too smart to allow discovery violations of this magnitude to happen.
5. The Legal Team May Be Responsible for Your Client’s Collection Efforts.
In naming individual attorneys to be sanctioned, the Magistrate repeatedly voiced the theme that the attorneys are responsible to supervise their clients collection and production of documents. I guess that fits with the notion that attorneys are officers of the court but it should make you think.
As is often the case with big corporations, outside counsel worked with a number of internal counsel, all of whom were members of the bar and likely had excellent credentials. Undaunted, Magistrate Major created a new rule of conduct for the attorneys, one which may give you pause:
[T]he Court believes the federal rules impose a duty of good faith and reasonable inquiry on all attorneys involved in litigation who rely on discovery responses executed by another attorney. … Attorneys may not utilize inadequate or misleading discovery responses to present false and unsupported legal arguments and sanctions are warranted for those who do so. … The facts of this case also justify the imposition of sanctions against these attorneys pursuant to the Court’s inherent power.
Opinion at 26 note 9.