Federal Rules of Civil Procedure Joint Rule 26 Framework - PowerPoint

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					       Qualcomm Inc. v. Broadcom Corp.,
No. 05 Civ. 1958, 2008 WL 66932 (S.D. Cal. Jan. 7,
                     2008)


         “A monumental   and intentional discovery
                         violation”



                  Presented by: Jordan Green
The Parties
   Qualcomm Inc.
     Initiated patent infringement suit saying patent
      104 and 767 were infringed because Broadcom
      manufactured, sold, offered to sell H.264 compliant
      products, Qualcomm wants injunctive relief,
      compensatory damages, and attorney's fees and costs

   Broadcom Corp.
     Allegedly infringed Qualcomm's patents, but they say
      the 104 patent is unenforceable due to inequitable
      conduct and asserts an affirmative defense that both
      patents are unenforceable due to participation in the
      "Joint Video Team" ("JVT")
The Set Up
 Broadcom made   an oral motion for
 sanctions after Qualcomm witness Viji
 Raveendran testified about e-mails not
 produced during discovery.The court
 ordered Qualcomm to show why
 sanctions should not be imposed against
 Qualcomm's retained attorneys
The Facts
   The JVT is the standards setting body that created the H.264 standard,
    released in May of 2003.The H.264 standard governs video coding.

   The Discovery request at the heart of the matter:
        "Qualcomm will produce non-privileged relevant and responsive documents describing
         Qualcomm's participation in the JVT, if any, which can be located after a
         reasonable search."


   Qualcomm says Christine Irvine is the most knowledgeable employee
    about the JVT, her computer is not searched and she falsely testifies that
    Qualcomm was never involved in the JVT. Strike 1.

   Qualcomm then says that Scott Ludwin is the most knowledgeable
    employee about the JVT, his computer is not searched and he testifies
    falsely that Qualcomm only began participating in the JVT after the H.264
    standard was published. Strike 2.
The Facts (cont.)
   21 e-mails are found that discuss the H.264 standard,
    the e-mails are from November of 2002, thus the e-
    mails undermine their argument they did not
    participate in JVT until late 2003. Attorney's
    ignore this fact. Strike 3.

   Qualcomm even went so far as to move for summary
    judgment based on the fact that they did not
    participate in the JVT until late 2003.

   The bottom line is that Qualcomm failed to produce
    46,000 incriminating e-mails.
The court is angry
 Clear and  convincing evidence
 Qualcomm intentionally engaged in
 conduct designed to prevent Broadcom
 from learning Qualcomm participated in
 the JVT during the time H.264 was being
 developed
 Inconceivable that Qualcomm was
 unaware of its involvement in the JVT and
 of the existence of the e-mails
The Legal Framework
   This case applies the sanction provisions in the
    Federal Rules of Civil Procedure with respect to
    discovery

   Rule 30(b)(6):An organization has an obligation to
    conduct a reasonable investigation and review to
    ensure a witness does possess the organization's
    knowledge.

   Rule 37 (c)(1): the court may prevent [a] party from
    using…evidence at trial or at a hearing and impose
    other appropriate sanctions, including the payment of
    attorney's fees.
The Legal Framework (cont.)
   Rule 26(e): Supplementing Disclosures and Responses
     (1) In General. A party who has made a disclosure under Rule
      26(a)--or who has responded to an interrogatory, request for
      production, or request for admission--must supplement or
      correct its disclosure or response:
       (A) in a timely manner if the party learns that in some material respect
        the disclosure or response is incomplete or incorrect, and if the
        additional or corrective information has not otherwise been made
        known to the other parties during the discovery process or in writing;
        or
       (B) as ordered by the court.
     (2) Expert Witness. For an expert whose report must be
      disclosed under Rule 26(a)(2)(B), the party's duty to supplement
      extends both to information included in the report and to
      information given during the expert's deposition.Any additions
      or changes to this information must be disclosed by the time
      the party's pretrial disclosures under Rule 26(a)(3) are due.
The Legal Framework (cont.)
 The court  determines reasonableness in
 light of the totality of the circumstances
 with respect to rule 26(g)(2)
E-Discovery Perspective
 The overalltake away from an E-
 discovery perspective is that courts are
 not going to tolerate a failure to meet
 discovery obligations. If an attorney fails
 to meet their discovery obligations by
 hiding materials they will be sanctioned as
 they were in this case.The “paradigm
 shift” seems to be at play in this case.
E-Discovery Issues
 Mainissue:Whether the attorneys
 can/should be sanctioned for failing to
 produce the e-mails
   What are the ethical obligations of counsel and
    corporate clients?
   What are the discovery obligations of counsel and
    corporate clients?
   What is the requisite "reasonable inquiry" required
    by Rule 30 of the Federal Rules of Civil Procedure?
    Conclusion/Outcome
   Qualcomm can't enforce the 104 and 767 patents nor their continuations,
    continuations in part, divisions, reissues, or any other derivatives of either
    patent

   Qualcomm ordered to pay $8,568,633.24 to Broadcom for its
    "monumental and intentional discovery violation"

   The offending attorneys are sent to Case Review and Enforcement of
    Discovery Obligations ("CREDO") program; the judge emphasizes that a
    detailed analysis of 6 points is required [see text pp. 440-41]
        Identifying the factors that contributed to the discovery violation
        Creating and evaluating proposals, procedures, and processes that will correct
         deficiencies
        Developing and finalizing a comprehensive protocol that will prevent future
         discovery violations
        Applying the protocol developed
        Identifying and evaluating data tracking systems, software, or procedures that
         corporations could implement to better enable inside and outside counsel to identify
         potential sources of discoverable documents
        Any other information or suggestions that will help prevent discovery violations
Conclusion/Outcome
 Qualcomm’s retained    attorneys had a
  duty to conduct a reasonable inquiry into
  the accuracy of his statement before
  telling the court the e-mails did not exist
 Kleinfeld and Tucker do not get
  sanctioned; But they signed as local
  counsel pleadings that contained false
  statements…inconsistent?
Questions
 Do you    think this case functions as a road
  map to assist counsel and corporate
  clients in complying with their ethical and
  discovery obligations and conducting the
  requisite "reasonable inquiry"?

 Should the court have sanctioned all the
  attorneys? Maybe even none of the
  attorneys? (see n.10 at 436)
Epilogue
 Vacatedin part by Qualcomm Inc. v.
 Broadcom Corp., 2008 WL 638108, 88
 U.S.P.Q.2d 1169 (S.D.Cal. Mar 05, 2008)

				
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