Practical Matters: What a tangled web

By David M. Heilmann
Clausen Miller

It starts early.

”Billy, did you eat those cookies?”

”No. I did not eat those cookies.”

It works its way into early school years, but gets tweaked.

”Billy, were you looking at Mary’s test answers?”

”No, I was helping her, Mrs. Throckmorton.”

It gets a bit more creative in high school. ”Billy, were you drinking?”

”No dad, no, no no. My buddies were drinking and when I tried to pull the can out of their hands, it basically exploded all over me.”

And it can eventually follow you through law school, where you learn to be very crafty with words and give answers like, ”It depends on what the definition of is is.” Said Billy.

”It” is a lie. For those in public life, it can be a bit more embarrassing.

”Just flying to Washington for another one of those damn meetings, honey. I’ll be in bed early, so you won’t hear from me after nine.

”Okay, Eliot.”

Gets more tricky when the lie is captured in writing, say, e-mails.

Detroit Mayor Kwame Kilpatrick was charged with perjury and other offenses on March 24, 2008. He said he didn’t have an affair with his aide.

But on Oct. 16, 2002, Kilpatrick wrote: ”I’ve been dreaming all day about having you all to myself for 3 days. Relaxing, laughing, talking, sleeping and making love. (Associated Press March 24, 2008.) Nice, Kwame.

Now move this type of conduct into the practice of law. Not the salacious part, but rather those lies. The little lies to protect the client. The little lies about maybe not finding documents. If you can just get away with it …

Forget it.

It’s amazing that with all the news around us about what happens when we are less than honest, every day we still seem to hear of yet another instance where the facts of the case get obscured by the dishonesty of counsel.

In a case involving tech rivals Qualcomm and Broadcom, a California judge recently ordered Qualcomm to pay $8.6 million in sanctions for failing to turn over 46,000 documents central to the opponent’s case. The judge didn’t buy the copier-jam excuse. (Qualcomm Inc. v. Broadcom Corp., 05cv1958-B (BLM), Order granting in part, deny in part Motion For Sanctions. Magistrate Judge Barbara L. Major, USDC So. Dist, Ca., Jan. 7, 2008.)

This began as a simple case of Qualcomm alleging that Broadcom infringed on certain patents.

One of Broadcom’s defenses was that there was a waiver by Qualcomm through its participation in a Joint Video Team (JVT) that created the standard that governs video coding.

In response to Broadcom’s document request for JVT documents, Qualcomm’s counsel answered that it would produce non-privileged relevant and responsive documents describing Qualcomm’s participation in JVT, if any, which can be located after a reasonable search. (Qualcomm’s response to Broadcom RFP, cited in Court Order 1/7/2008.)

But they didn’t. They missed 46,000 sitting in the e-mail archives of Qualcomm’s trial witnesses. Ooops.

In arriving at the decision, the court looked to the attorney’s conduct. The court envisioned four scenarios, ranging from the lawyers having knowledge and intentionally hiding documents to the lawyers suspecting there was additional evidence and choosing to accept Qualcomm’s incredible assertions regarding the adequacy of the document search and witness investigation. (Court order Jan. 7, 2008, p 24.)

Judge Major ruled out the three most egregious scenarios of misconduct for what may have happened. She found that most likely the lawyers chose not to look in the correct locations, accepted their client’s unsubstantiated assurances that its search was sufficient, ignored warning signs that the document production was inadequate, and failed to press Qualcomm’s employees for the truth.

”These choices enabled Qualcomm to withhold hundreds of thousands of pages (even more than just 46K) of relevant discovery and to assert numerous false and misleading arguments to the court and jury. This conduct warrants the imposition of sanctions.” (Court order Jan. 7, 2008, p. 26.)

Under Rule 3.3 of the Illinois Rules of Professional Conduct, a lawyer shall not participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false and/or suppress any evidence that the lawyer or client has a legal obligation to reveal or produce. (Illinois Rules of Professional Conduct 3.3 (5); (13).)

In the Qualcomm case, the court practically applied a negligence standard to the attorneys’ efforts toward complying with discovery. The implication was of a duty owed to look in the correct locations for documents, a breach by failing to do so by accepting unsubstantiated assurances of the client, the ignoring of warnings, and damages - the legal fees expended by the other side.So in practice, attorneys should be very specific to clients about the need to make a diligent search for records. All records.

If not, you could find yourself out there dodging bullets.

Like little Billy’s wife.