E-Discovery Trips Up Lawyers

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Outside lawyers for Qualcomm Inc. will appear at a Friday hearing that considers whether they should be sanctioned for failing to turn over e-mail in a patent dispute with Broadcom Corp.

The dustup has gotten a lot of ink in the legal press, but Qualcomm’s problems are not unique, the Wall Street Journal reports (sub. req.).

Morgan Stanley was ordered to pay $1.57 billion for failing to turn over backup tapes in litigation with investor Ronald Perelman, who claims he was defrauded in the sale of a business. An appeals court overturned the award, but Perelman is appealing.

In another case, Intel Corp. says it may have to spend more than $20 million to recover e-mails that were deleted during antitrust litigation pursued by Advanced Micro Devices Inc.

In one survey, around 94 percent of those who oversee e-mail said they don’t believe their organizations are able to comply with the revised Federal Rules of Civil Procedure (FRCP), which require companies to quickly produce e-discovery documents, ComputerWorld reports.

In the Qualcomm case, lawyers from its lead firm Day Casebeer Madrid & Batchelder and outside firm Heller Ehrman will defend their actions on Friday.

A judge in the case has found that Qualcomm and its lawyers engaged in “an organized program of litigation misconduct” for failing to turn over tens of thousands of pages of electronic documents. The company’s then-general counsel Louis Lupin and its primary outside lawyer, James Batchelder, apologized to the court but said they made only honest mistakes.

Recent declarations in the case focused on 21 e-mails not revealed during the trial because of a conclusion by Day Casebeer that they weren’t responsive to discovery requests, ABAJournal.com noted in an earlier post.

“This is every trial lawyer’s nightmare,” Francis H. Morrison III told the Wall Street Journal. He is a lawyer with Axinn Veltrop & Harkrider who isn’t involved in the case.

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