Qualcomm Lawyers Get Sanctions Lifted, Privilege Pierced in Discovery Fiasco

Legal Ethics

Qualcomm Lawyers Get Sanctions Lifted, Privilege Pierced in Discovery Fiasco

Posted Mar 7, 2008, 06:12 am CST
By Debra Cassens Weiss

A federal judge is allowing six Qualcomm lawyers sanctioned for discovery violations in patent litigation to testify about privileged client communications.

U.S. District Judge Rudi Brewster of San Diego lifted the sanctions yesterday and returned the case to the federal magistrate who imposed them, the Recorder reports. Brewster said the lawyers should be allowed to testify under a self-defense exception to the attorney-client privilege.

Five of the lawyers are from Day Casebeer Madrid & Batchelder, and one is from Heller Ehrman.

Brewster had previously held the privilege prevented the lawyers from testifying, but he changed his mind because Qualcomm had filed declarations in advance of the sanctions hearing that criticized the advice and services of the outside lawyers, the Wall Street Journal reports (sub. req.).

“The attorneys have a due process right to defend themselves under the totality of circumstances presented in this sanctions hearing where their alleged conduct regarding discovery is in conflict with that alleged by Qualcomm concerning performance of discovery responsibilities,” Brewster wrote in the opinion (PDF).

Diane Karpman, a lawyer who defends lawyers charged with ethics violations, told the Recorder that the normal scenarios in which lawyers are allowed to invoke the self-defense exception are malpractice suits, state bar actions and fee disputes. She said Brewster’s ruling goes beyond those situations.

"The idea of expanding the right to defend to introduction of accusatory adversity is really wonderful," she told the publication. "This prevents clients from gaming the system."

The Day Casebeer lawyers who were sanctioned are James Batchelder, Adam Bier, Kevin Leung, Christian Mammen and Lee Patch. The sanctioned Heller Ehrman lawyer is Stanley Young.

The magistrate, Judge Barbara Major, had written that the Qualcomm had produced “1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones” in patent litigation with Broadcom, and she faulted the lawyers for failing to prevent it from happening.

“The sanctioned 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 sanctioned attorneys then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.”

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