This is big. In the much discussed Qualcomm matter, where the federal court referred six lawyers (including two second-year associates) to the state bar for possible discipline, it now appears that the outside lawyers will blame the client for misleading the lawyers. Some observers (myself included) have expected that defense to be raised -- and I eagerly await the court's ruling on it.
I will post more analysis as it become known but for now want to mention one angle: the "disaggregation" of larger legal representations. Increasingly, we are seeing corporate clients break up the legal representation into functional pieces and then farm out the functions to various providers, including lawyers. To some degree this is old news. And is certainly makes economic sense, given the costs of high-end legal services. But in this era of electronic discovery and outsourcing, the dangers for the client and outside counsel have increased. I had predicted that Qualcomm might usher in an era of increased danger for in-house counsel who manage large litigations. Perhaps at the Qualcomm hearing, set for January 2010, we will get some answers.
This is an extremely interesting case, which I've been following for a while now. In addition to the point John raises, a couple of interesting aspects are:
(1) The emerging norms of electronic discovery, which require lawyers to be much more proactive in monitoring their clients' compliance with their obligations under the discovery rules. This is one of the holdings of the Zubulake cases, and it's clear from that case and other electronic discovery cases that it's not sufficient to simply ask the client for responsive documents. Lawyers must, to some extent, oversee the search process. This may require a bit of technical expertise. Judge Scheindlin in one of the Zubulake cases said "lawyers must familiarize themselves with their clients' data retention architecture," and it's clear from the decisions that she doesn't mean this only in general terms. Rather, lawyers have to conversant enough with this stuff that they can work with their clients' in-house lawyers and IT personnel to craft effective search strategies.
I would note, by the way, that Qualcomm's claim that they couldn't have located these documents using a reasonable search strategy is bogus. At Broadcom's request, Qualcomm lawyers ran a fairly simple keyword search using terms like "JVT" (the most important issue in the underlying patent litigation) and immediately turned up thousands of pages of documents.
(2) The importance of credibility, and the potential for losing it through super-adversarial discovery. In Judge Brewster's opinion on discovery abuse, he sets out pages and pages of excerpts of the ridiculous objections (on vagueness and overbreadth grounds) that Qualcomm asserted. He characterized that as "stonewalling." Many lawyers would call that "reasonable resistance to discovery." Although the sanctions order did not address the aggressive discovery, it's clear from reading the whole opinion that the judge thought Qualcomm litigated the whole proceeding in bad faith. Thus, by the time the lawyers for Qualcomm made their abject apology in court, claiming they wouldn't have denied Qualcomm's participation in the JVT if they had access to the newly produced documents, the judge wasn't particularly inclined to believe them.
(3) As discussed earlier on LEF, there were some interesting issues on the application of the self-defense exception to the attorney-client privilege. Judge Brewster held -- rightly in my view -- that the exception applies once Qualcomm tried to blame the fiasco on outside counsel. The lawyers at Day Casebeer and Heller Ehrman were then permitted to obtain discovery of lawyer-client communications to show that they had made reasonable requests for information, in compliance with their own obligations. Judge Brewster mentions in passing that this may be a requirement of due process, but I think it's better understood as a common-law waiver doctrine.
Posted by: Brad Wendel | November 04, 2009 at 12:51 PM