Managing Ethics in E-Discovery

David G. Keyko
New York Law Journal
January 3, 2008

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.

Making matters worse for the attorneys, Qualcomm blamed the problem on counsel for not requesting the relevant documents and the court declined to allow the lawyers to introduce litigation records the lawyers asserted evidenced their innocence. Those records were protected by the attorney-client privilege, which the client declined to waive.

In a major document case, it is almost a certainty that some documents not called for will be produced, and some documents that have been requested will be inadvertently overlooked. Qualcomm underscores the necessity of attorneys carefully fulfilling their obligations to collect, review, process and produce information during litigation.


Make sure there is a clear division of responsibility if multiple law firms are involved and between inside and outside counsel. This will limit finger pointing about whose job it was if records are overlooked. The client will probably want an estimate of the costs involved, and that presents a good opportunity to document who will perform what role. If responsibility is given to those who are not attorneys, the lay people should be supervised carefully by counsel.

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