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6 février, 2008 16:08

Zusha Elinson and Dan Levine

The Recorder

01-08-2008

Six attorneys in the Qualcomm Inc. discovery fiasco were sanctioned Monday for "monumental" discovery violations and referred to the State Bar of California for possible discipline.

Day Casebeer Madrid & Batchelder attorneys James Batchelder, Adam Bier, Kevin Leung, Christian Mammen and Lee Patch, and Heller Ehrman's Stanley Young were sanctioned and harshly criticized by U.S. Magistrate Judge Barbara Major in a 42-page order. The ruling follows a patent infringement trial Qualcomm had brought against Broadcom Corp.

The attorneys "assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm's document search was inadequate, and blindly accepting Qualcomm's unsupported assurances that its document search was adequate," Major wrote.

The judge also sanctioned Qualcomm for intentionally withholding "tens of thousands of e-mails." Qualcomm will have to pay Broadcom's $8.5 million attorney fees -- though that award mirrors a sanction already imposed by another judge.

The long-awaited ruling closes a chapter on the Qualcomm discovery saga and passes the baton to the State Bar of California for further investigation. Attorneys across the country have watched the case evolve as a cautionary tale of discovery violations even when highly respected litigators are on the case.

The discovery issue arose during the January 2007 trial over video compression patents. A Qualcomm witness disclosed the existence of e-mails that turned out to be highly relevant to the case. In April 2007, Qualcomm's then-general counsel Louis Lupin and Batchelder apologized for neglecting to turn over the e-mails, but argued that Qualcomm's trial team had never acted in bad faith. Still, San Diego Judge Rudi Brewster issued a bruising order castigating Qualcomm's team for "gross litigation misconduct" and referred the sanctions issue to Major.

On Monday, Major lowered the boom on the high-profile attorneys. She accused Patch of having "carefully tailored his questions" to ensure that a witness did not testify about the undisclosed e-mails, then having "affirmatively misled the court" about them. She said Batchelder "did not read the e-mails, ask about them, nor inquire as to why they were not located during discovery." And Young filed a motion for summary adjudication without conducting "a reasonable inquiry" into its factual basis.

Major stopped short of imposing an additional fine on Qualcomm, but ordered the Heller and Day Casebeer lawyers in a "comprehensive case review and enforcement of discovery obligations program." Qualcomm in-house attorneys Alex Rogers, Roger Martin, William Sailer, Byron Yafuso and Michael Hartogs also were ordered to appear before Major on Jan. 29 to come up with a protocol for the program.

Major also said an attorney from Broadcom could participate in the program as well, at Qualcomm's expense.

"While we are disappointed with some of the court's conclusions, our attorneys here at Day Casebeer always held themselves to the highest standards of professional advocacy," said Paul Grewal, a partner at the firm, in response to Major's order.

Lawrence Keeshan, a partner at Heller Ehrman, said the firm is pleased that the court did not sanction other Heller attorneys involved in the case. "However, we believe the sanctions imposed on Stanley Young are unwarranted," Keeshan said. "This is especially true as Mr. Young did not have the opportunity to tell his full story to the court, because he was prevented from doing so by the attorney-client privilege."

William Boggs, the DLA Piper partner who serves as Qualcomm's corporate counsel, said the company is considering its options, including further appeal.

Said Broadcom vice president of IP litigation David Rosmann, "I don't think anybody can look at this and feel happy."