Corporate
Lawsuits and Lessons Learned
Since the adoption of special amendments to the Federal Rules of Civil in late 2006, the field of e-discovery law has grown more dangerous for business enterprises.
Recent cases show courts are serious about expecting litigants to possess and be able to find their email and other electronic records. Litigation trends suggest that a corporation is wise to be generous in the retention of email by decision-makers and to be capable of easily finding and searching the more recent records.
A prudent course would be for the company to implement a central email archival system.
Qualcomm
In a patent lawsuit with its rival Broadcom, chip-maker Qualcomm and its lawyers are living an ediscovery nightmare. From Qualcomm’s perspective, the problem stems from the company’s inability easily to identify all the relevant email records.
Early in the lawsuit, Qualcomm searched its records and turned over what it believed were the relevant emails. But later, under cross-examination at trial, its engineer referred to some emails that had not been turned over. Qualcomm lost the lawsuit, but the court was not finished with Qualcomm.
The court was dismayed that the emails referenced by the engineer were not disclosed in the original e-discovery phase of the lawsuit. The court wanted to re-examine the question whether Qualcomm had disclosed all email as originally required in the rules of litigation.
The court ordered Qualcomm to sift through its records again. This time Qualcomm found more records that should have been disclosed in the original e-discovery. Thecourt felt Qualcomm deserved punishment. The court’s reasoning was that if parties fail to find and divulge electronic records early in litigation, then lawsuits drag out for longer than necessary. So the court ordered Qualcomm to reimburse all of Broadcom’s attorneys’ fees and costs.
But it was not finished. The court felt so strongly about enforcing the rules of ediscovery that it ordered the 14 lawyers who had worked on the case for Qualcomm to appear at a hearing to explain each one why he or she should not be sanctioned personally!
This is an eye-catching event. It informs lawyers and law firms that if they don’t ensure strict compliance with e-discovery by their clients, then they themselves may be forced to pay fines, endure public censure or even risk the revocation of their bar licenses. (1)
The implication is that in all litigation, all enterprises need organized, searchable records.
Contact us for a free 30 minute email policy consultation.
1. Don Clark, “Recovered Emails Bedevil Qualcomm in Court,” Wall St. Journal, Oct. 9, 2007, B1; “Compliance And E-Discovery: Two Inseparable Risk Management Functions,”
http://metrocorpcounsel.com
©Copyright Benjamin Wright 2008.
