“Broadcom’s counsel asked the right question on cross.”
So, even seasoned attorneys must learn to speak “tech.”
Because of their experi- ence, they may have spotted the issues. They may under- stand how
to deploy Requests for Admission, Interrogatories, and Requests for Production of Documents. But ESI now pervades the factual universe and so now dominates the discovery proceedings in litigation and even arbi- tration proceedings, and will do so into the indefinite future. We cannot un-ring this bell. It is fast becom- ing standard practice for an attorney’s first deposition in a case to be the deposition of the manager of other side’s IT department.
Sanctions
If attorneys fail to put (and keep) ESI and e-Discovery at the top of their minds, they may face a variety of serious sanctions. In the early days of e-Discovery, courts were perhaps more lenient than they are today. Those days are gone. Now the range of sanctions is worrisome indeed to litigants and their counsel. A wide range and severity of sanctions can be imposed for negligently or intentionally failing to preserve potentially relevant evidence.
Sanctions can take many forms. The most frequently imposed sanction is monetary. The most serious sanctions are terminating sanctions, burden- shifting orders, and adverse inference instructions.
When a motion to compel further production of documents and for sanctions is granted, the likely penalty will be monetary, usually in the form of an award of attorney fees to the party who did not receive the documents it requested and had to go to the expense of making the successful motion.
Monetary sanctions are the most frequently imposed sanction for negligent handling of ESI. Mon- etary sanctions can be significant, and can range from
tens of thousands of dollars to millions.xx 52
The case of Qualcomm v. Broadcom is
famous in part because it involved a sanction of $8.5 million. A sanction that high is worth some discussion. Qualcomm was a patent law- suit where critical to the claim was whether Qualcomm participated in the Joint Video Team (JVT), an industry standard-setting body, in 2002 and early 2003. Qualcomm asserted that it had only begun to participate in the fall of 2003, after the standard had been set, and only with respect to professional extensions (or ad- ditions to) the standard. At trial, a key witness testified that she had not read e-mails indicating that she had participated in the JVT in late 2002. But Broadcom’s counsel asked the
right question on cross: had she received e- mails when the JVT was meeting? The answer was yes. This revelation prompted Broad- com to ask for the e-mails and, during the lunch break, Qualcomm’s attorneys produced 21 of them. Qualcomm and its counsel ar- gued that they were not responsive to Broad- com’s discovery requests and did not believe that these newly discovered e-mails called their earlier search procedures into question.
Initially, the court believed that the at-
torneys knew better. As a result, the court lev- ied an $8.5 million monetary sanction against Qualcomm, and imposed a court-monitored Case Review and Enforcement of Discov- ery Obligations (CREDO) program. As a re- sult of the CREDO program, it was discov- ered that, while more than a million pages of only marginally relevant documents had been produced, 46,000 relevant documents (totaling more than 300,000 pages) had not been produced. Needless to say, the court was not pleased and, in addition to the mon- etary sanction, the court referred the offend-
ing attorneys to the State Bar for discipline. xxi But on April 2, 2010, after substan-
tial discovery proceedings on remand and a three-day hearing, Magistrate Judge Bar- bara Taylor issued an order which lift- ed the sanctions against the individual
attorneys.
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