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Legal Ethics

Sanctions Will Deter Discovery Abuse, Qualcomm Magistrate Says

Posted Oct 15, 2007 6:58 AM CDT
By Debra Cassens Weiss

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U.S. Magistrate Barbara Major made no ruling at the end of a five-hour hearing on Friday on whether to impose sanctions against lawyers for Qualcomm for discovery abuse.

But her comments made clear she’s not happy with the lawyers’ failure to produce more than 200,000 electronic documents in a patent infringement suit against rival chip maker Broadcom, the Recorder reports.

"If there isn't some kind of sanction, there's no deterrence,” she said. “How can this possibly be tolerated in the age of digital evidence?"

Nineteen lawyers from Heller Ehrman and Day Casebeer Madrid & Batchelder tried to defend their actions, but their explanations were limited because Qualcomm has not waived attorney-client privilege in the case, the San Diego Union-Tribune reports. The company has already been ordered to pay an estimated $8.5 million in Broadcom’s legal fees because of the discovery problems.

Joel Zeldin, who represents several Day Casebeer lawyers, said Qualcomm is using the privilege to infer the lawyers performed badly in the case.

"You can't use attorney-client privilege as both a sword and a shield," Zeldin said. "What they are doing is exactly that. They give you part of the story. They can say almost anything they want because they know we can't answer."

Major said she would write an opinion on sanctions, but did not indicate when it would be released.

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