Ethics

Judge Major wrote a very impressive 48-page opinion sanctioning six attorneys and Qualcomm itself for what the court saw as massive discovery misconduct.  It is not a surprise to anyone attending the hearing.  I think the court essentially had to defend its ability to rely on the discovery process, which implied a firm stance with respect to counsel and Qualcomm itself. 

But though I think the court's opinion reasonable, I personally am not persuaded that the sanctioned attorneys--Batchelder, Bier (especially), Leung, Mammen, Patch, or Young--acted maliciously or recklessly.  I think it more likely that their client was  excessively confident about its own discovery procedures, and that the division of labor on discovery worked poorly for outside counsel.  (Though that opinion might change either way if Qualcomm waived the privilege and we had more facts.)

Did the lawyers act negligently?  Maybe, but second-guessing is too easy for me to be fully comfortable with that call, especially when counsel for the lawyers flatly represented that they had exculpatory information the privilege prevented them from presenting.  It is hard to return to the world as they saw it, before the relevant documents were found.  (And there is no evidence that they were found and willfully suppressed.)  Hindsight bias is real.  Probably a lot of lawyers would have made the decisions they made, especially in dealing with a client they had represented for years and knew well.  (I acknowledge that a cynic would add: a client that accounted for a lot of revenue.) 

Perhaps I am naive, but in my view the case is not about corrupt lawyers but instead about the changing economics of discovery, possible client overconfidence in its own discovery processes, and plain old bad luck that could have happened to a large fraction of the people in their position.  The case is an important wake-up call precisely because there is no evidence of deliberate misconduct, which no one needs a wake-up call to guard against.  If you're not careful, it could happen to you. (See related post on lessons learned for more along this line.)

Having said all that, the order is useful as a wake-up call, and it would not be if the lawyers walked away.  As I said, I can well understand the court's reaction to the discovery failure, and the need to signal to the bar that such failures are unacceptable.  Judge Major's order makes sensible distinctions and makes sense under the circumstances.  From her perspective, I think she had little if any other choice. 

Be careful out there.

DM