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Managing Ethics in E-Discovery

January 8, 2008

New York Law Journal, January 3, 2008

This article highlights the case of Qualcomm Inc. v. Broadcom Corp. — and serves as a good reminder of the ethical issues related to e-discovery and electronic records management. During the last day of this trial, a Qualcomm witness revealed the existence of 200,000 pages of undisclosed electronic documents. Here’s a quick recap of what happened after that:

”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.”

David Keyko – this article’s author and a partner in the New York office of Pillsbury Wintrhop – says that this highly publicized e-discovery fiasco “underscores the necessity of attorneys carefully fulfilling their obligations to collect, review, process and produce information during litigation.”

Keyko’s bullets on an attorney’s obligations during e-discovery are strong and worth the read. The only thing we’d have liked to see Keyko weigh in on is the attorney’s role in authenticating electronic records and protecting the integrity of the information they contain.

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