Managing Ethics in E-Discovery

Cases like Qualcomm Inc. v. Broadcom Corp., S.D. Cal. 05-cv-1958-B (SLM), have highlighted the dangers to lawyers and their clients of not properly managing electronic discovery. In Qualcomm, during the last day of trial, on cross-examination, a Qualcomm witness revealed the existence of certain unproduced records. After the trial, which Qualcomm lost, Qualcomm produced the records its witness belatedly disclosed, which totaled 200,000 pages.

The court found that the plaintiff's counsel was involved in the misconduct and concealment, despite the lawyers' claims that they had been misled by their clients. The court required Qualcomm to pay Broadcom's litigation costs, which will be millions of dollars, and entered an order to show cause requiring Qualcomm's attorneys to appear and show cause why sanctions should not be imposed upon them.