A blockbuster decision was issued in the notorious “take no prisoners,” “bet the company,” Qualcomm v. Broadcom, Case No. 05cv1958-B, in San Diego. In a heart-wrenching decision, the lawyers are being prevented from disclosing what really occurred, because of the duty of confidentiality (Business and Professions Code § 6068(e)). In other words, their hands are tied, and they can’t defend themselves. Qualcomm refused to waive. For an analysis of “self defense,” see L.A. County Bar Update, May 2007, Vol. 27, No. 5. You can find the Qualcomm order and a discussion on John Steele’s legalethicsforum.com/.

There are many issues in the decision. Qualcomm produced “1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones.” (p.18) Qualcomm claimed it “inadvertently” failed to find the 46,000 documents. “Inadvertent” has, of course, become the true fashionable word for the legal profession in 2008. The court rejected this claim, because it said what was produced opportunistically supported Qualcomm’s position, whereas what wasn’t produced was detrimental to its stance in the litigation.

There was no evidence that Qualcomm shared the damaging documents with its lawyers. The court (circumstantially based on the lawyers’ conduct) believed that the lawyers suspected that there was additional unproduced evidence. “[O]ne or more of the retained lawyers chose not to look in the correct locations for the correct documents,” or accepted the “unsubstantiated assurances of an important client,” that its internal search was sufficient. (p.26) Again, the lawyers couldn’t defend themselves or explain what actually happened. The court sent a clear signal regarding what to do in that circumstance. Lawyers must withdraw pursuant to Rule 3-700. “Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.” (p.27, fn.10) This case sends a strong message in terms of e-discovery.

In addition to other intriguing issues, there is an interesting analysis of supervisorial and subordinate obligations. In modern day legal practice, lead counsel often relies on the work of junior attorneys. It is the only economical way to conduct complex litigation. In Qualcomm, the court found it was reasonable for senior lawyers to rely on other attorneys more actively involved in the litigation. The determination of whether reliance is reasonable is dependent on the circumstances in each case. Junior associates need to heed this case. They cannot bring something to a lead lawyer’s attention, then passively acquiesce to a decision that constitutes misconduct.

The lawyers involved are highly sophisticated and well-educated. The court maintained that it is “inconceivable” that these talented and experienced lawyers failed to see what was going on. Further, the court will not countenance “deliberate ignorance,” in this “monumental discovery violation.”

The new e-discovery rules are going to usher in a new era, and the message of the decision is crystal clear. Err on the side of production. Any other alternative is just too risky.