You Know; You Just Never Know.

It would not be hard to find a commercial litigator with a story about how opposing counsel withheld information requested in discovery.  Two of the better exposés this year are Judge Hellerstein’s ruling sanctioning law firms that represented companies that insured the WTC, and the ruling by Judge Brewster on sanctions in Qualcomm v. Broadcom (S.D. Cal. 8/6/2007).  Something is needed on occasion to restore confidence in the system.  Lessons can be learned.
Qualcomm sued for infringement of patents that, to some degree, embody a video coding standard promulgated by participating technology companies.  Judge Brewster found that participation in the standards setting body imposed a duty to disclose those patents held by participants “that reasonably may be essential to practice” the standard.  Qualcomm did not disclose patents to that body.  The non-disclosures more troubling to the Court, were documents and e-mails not produced before trial, and mistaken testimony by Qualcomm representatives in depositions, that “evidence unequivocally contradicts Qualcomm’s assertions at summary judgment, during trial, and at the post-trial hearing on waiver and inequitable conduct.”  Based on the late-made production, the Judge found misconduct by Qualcomm and its witnesses that was “extensive” and “intentionally organized to shield” material facts.
Qualcomm’s misconduct was accomplished, to an extent, by “aggravated litigation abuse,” by “constant stonewalling, concealment, and repeated misrepresentations,” and by “presentation of numerous witnesses who steadfastly testified falsely.”  Also implicated were “Qualcomm’s lead and co-counsel” who had “adamantly denied the obvious” then when the truth was “exposed by the document production, sequentially” denied “relevance” and contended “mistake, and finally non-awareness.” 
The ruling quotes errorneous testimony by Qualcomm’s witnesses, who denied being involved in the standards setting.  It’s 30(b)(6) representative testified: “Is Qualcomm a member of the JVT? “No, Qualcomm is not. “Has Qualcomm ever attended any meetings of the JVT? “Qualcomm is not aware of any attendance to any JVT meetings.”  Months later, “Qualcomm produced over one hundred emails post-trial related to Qualcomm’s participation in the JVT and attendance of JVT meetings.”
Counsel for Qualcomm employed a discovery response that every patent litigator has seen: “Qualcomm will produce non-privileged relevant and responsive document [re: topic], if any, which can be located after a reasonable search.”  But, did it ever produce those?  Still, Magistrates from coast-to-coast will accept that response, coupled with non-production, in case after case.  Why?
What defense could counsel proffer – “having been ‘kept in the dark’ by their client.”
The lessons that come from such scorched earth are these.  Take care as counsel when repeating to the Court what your client represented to you.  Instead of saying, ‘there’s no e-mails – none,’ stick to ‘needing to protect as privileged what my client has told me, suffice it to say that a serious search effort was made, and all relevant non-privileged documents provided to my office were produced, and the rest are on the log.’  When you repeat a client’s representation, then it becomes your representation, and you lose the ability to amend later what you have represented.  Next, when your client conceals discoverable information, the prime unpleasantness is that, ethically, you cannot ‘rat out’ your own client.  All you can do is amend/withdraw the erroneous or incomplete state of the facts – and deal with all the sanctions motions.  You can ask your client (the company, not the individuals) to distance itself from persons responsible for the errors, and that may save counsel and the company from being sanctioned.
There have been too many cases where requested, relevant discovery has been withheld, not logged, and the courts do nothing to address it or to correct it.  No wonder it keeps happening.