In Qualcomm, Inc. v. Broadcom Corp., U.S. District Court, Southern District of California, Senior District Court Judge Rudi Brewster vacated the Magistrate Court's earlier order sanctioning six outside lawyers for Qualcomm, Inc.  In January, Magistrate Court Judge Barbara Major found that Qualcomm and its retained lawyers intentionally and deliberately withheld tens of thousands of decisive documents, including emails, from its opponent in an effort to win the case and gain a strategic business advantage.

In Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga Feb. 25, 2008), plaintiffs in an employment discrimination case sought discovery of emails from 1998 through 2006 evidencing the presence of pornography on defendant's employees' computers.  The court held that defendant need only produce: (1) undeleted emails sent prior to 2007 by a current employee who had been specifically named by plaintiffs as having explicit materials on their computer and (2) emails with sexual content sent or received by any of plaintiffs' former coworkers.

On February 27, 2008, the Senate unanimously approved a bill that included the new proposed Federal Rules of Evidence, Rule 502.  Under the proposed rule, the disclosure of attorney-client or work product protected materials does not operate as a waiver if the disclosure was made inadvertently.  The party claiming privilege must take reasonable steps to prevent disclosure and take immediate action to rectify the error, including adherence to the provisions set forth in FRCP 26(b)(5)(B).  The House of Representatives has yet to vote on the measure.

For more information go to http://www.govtrack.us/congress/bill.xpd?bill=s110-2450.

Since the 2007 amendments to the FRCP, commentators have been speculating that Rule 34 requires the production of electronically stored information in its "native" format.  Rule 34 states, in the absence of a specific request, electronic data can be produced as it is ordinarily maintained or in a reasonably usable form.  Recently, Judge Facciola underscored this point in D'Onofrio v. SFX Sports Group, Inc., 2008 U.S. Dist. LEXIS 4252 (D.D.C. Jan. 23, 2008), where he rejected a party's request for native files when the party failed to follow the procedures set forth in the FRCP.

On February 20, 2008, attorneys for Qualcomm filed Qualcomm's reply to Broadcom Corporation's Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge.  In the short reply, Qualcomm acknowledged a payment of the sanctions award to Broadcom in the full amount of $8,568,633.24.

In United States v. O'Keefe, 2008 WL 449729 (D. D.C. Feb. 18, 2008), Magistrate Judge John Facciola, held that Rule 34 of the Federal Rules of Civil Procedure can be used in the criminal context to evaluate whether the government produced electronic documents in an appropriate format.  Judge Facciola also opined that evidence related to search term methodology is "clearly beyond the ken of a layman" and requires expert testimony under Federal Rules of Evidence, Rule 702.  Under FRE 702, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may, upon satisfactory qualification,  testify in the form of an opinion.

Football season may be over, but the early season "spygate" scandal involving the New England Patriots and Coach Bill Belichick's illegal videotaping of the New York Jets' defensive play-calling signals may just be getting started.  Senator Arlen Spector is looking into the possibility of congressional hearings over the NFL's destruction of videotaped evidence of the Patriot's wrongdoing.  Belichick and the Patriots drew fire and a record fine from the NFL which included $750,000 and the forfeiture of a top draft choice.

On January 7, 2008, Southern District of California Magistrate Court Judge Barbara Major issued an order granting sanctions against Qualcomm, Inc. and six of its retained lawyers for their collective failure to produce more than 42,000 documents.

This is where the business of law and the practice of law intersect, discussing the latest in retention, review and discovery.

Your Host: Cecil Lynn III. 
Cecil is Of Counsel to Ryley Carlock and a nationally-known thought leader in E-Discovery
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Cecil Lynn II

RYLEY CARLOCK & APPLEWHITE DOCUMENT CONTROL GROUP EXPANDS WITH ADDITION OF E-DISCOVERY THOUGHT LEADER, CECIL LYNN III

(Phoenix, Arizona and Denver, Colorado) Ryley Carlock & Applewhite, a leading Southwest law firm with offices in Phoenix and Denver, announced today it has hired Cecil Lynn III as Of Counsel to the firm. Lynn is a recognized thought leader in the area of electronic discovery and speaks and publishes on a wide variety of e-discovery topics including, document review, document retention, data accessibility, and international e-discovery. He is an active member of both The Sedona Conference® and the Electronic Discovery Reference Model (EDRM) Project.