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

Qualcomm Inc. v. Broadcom C orp. , No . 05 Civ. 1958, 2008 WL 66932 (S.D . Cal. Jan. 7, 2008). Presented by: Jordan Green . “ A monumental and intentional discovery violation ”. The Parties. Qualcomm Inc.

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

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  1. Qualcomm Inc. v. Broadcom Corp.,No. 05 Civ. 1958, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) Presented by: Jordan Green “A monumental and intentional discovery violation”

  2. 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")

  3. 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

  4. 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.

  5. 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 46,000incriminating e-mails.

  6. 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

  7. 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.

  8. 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.

  9. The Legal Framework (cont.) • The court determines reasonableness in light of the totality of the circumstances with respect to rule 26(g)(2)

  10. E-Discovery Perspective • The overall take 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.

  11. E-Discovery Issues • Main issue: 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?

  12. 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

  13. 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?

  14. 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)

  15. Epilogue • Vacated in 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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