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Round Up the Usual Documents

Is there a legal proceeding pending in the U.S. today that is being watched with more anticipation by more lawyers than the Order to Show Cause regarding discovery abuse in Qualcomm v. Broadcom?

Summaries of the underlying problem — some 200,000 pages of responsive documents not disclosed by Qualcomm to Broadcom in connection with a patent suit until after the trial— are available here and here.  More than a dozen Qualcomm lawyers, partners and associates alike, were named in the Order to Show Cause regarding possible sanctions. 

The American Lawyer covered last Friday’s OSC hearing in this article.  David McGowan was there and posted this thoughtful analysis.  Qualcomm’s outside counsel find themselves the objects of a court that somehow has to resolve a three-pronged dilemma:  On the one hand, there was obviously a massive failure of communication between counsel and client.  On the other hand, the client very badly wants to blame its outside counsel for the screwup.  (Broadcom, in its filing leading up to last Friday’s hearing, pointed the finger directly at Qualcomm.)  And on the third hand, outside counsel wants badly to exonerate itself (and explicitly or implicitly blame the client) but cannot do so, because doing so requires disclosing information protected by the attorney-client privilege.  Which the client will not waive. 

New law grads and soon to be new law grads, take note of what’s going on here.  The electronic discovery problem is relatively new but already huge and getting “huger.”  The privilege problem, however, is as old as the dirt.