On January 7, 2008, the United States Magistrate Judge Barbara Major issued a sanctions order against Qualcomm and certain in-house and outside counsel for discovery misconduct.  Specifically, the Court ordered that Qualcomm pay $8.5 million in opposing counsel’s fees for withholding critical documents during discovery, and Qualcomm’s attorneys further were referred to the California State Bar for an appropriate investigation.

On March 5, 2008, United States District Judge Rudi M. Brewster vacated the sanctions against the attorneys and remanded to Judge Major to investigate.  Roughly fifteen months later, at untold cost to the attorneys involved, a massive discovery effort came to a close. On April 2, 2010, Judge Major issued an order declining to impose sanctions against the attorneys.  In her order, the Judge states that although there was a “massive discovery failure” resulting from “significant mistakes, oversights, and miscommunication,” the attorneys made significant attempts to comply with their discovery obligations.

Judge Major enumerates the errors that gave rise to the discovery failures, indicating that an “incredible breakdown in communication” was the fundamental problem.  No attorneys, in-house or otherwise, ever met in person with the Qualcomm employees who were likely to be important witnesses. Nor did outside counsel make any attempts to understand how and where data was stored on Qualcomm’s computer network. Finally, there was no single attorney responsible for discovery, resulting in the finger-pointing that occurred among the legal counsel when it came time to defend the discovery process.

In the end, the Judge reasoned that these failures were exacerbated by the lack of candor on the part of Qualcomm employees to such a degree as to foil any good faith attempts by the attorneys to meet their discovery obligations. And although the attorney sanctions were dropped, the cost in time and money for all parties involved should serve as a warning to all in-house counsel, corporate leadership and litigators: effective communication is fundamental to any discovery process. Without it, millions of dollars, thousands of hours, and whole careers are at risk.