A second US law firm has published an opinion on Qualcomm's legal practices during the recent Broadcom vs Qualcomm lawsuit.

Alan Cohen, corporate counsel of law.com, reckons Qualcomm's non-disclosure of relevant documents in the case "might have been the most incredible" case of legal disclosure going wrong.

A couple of months ago the US National Law Review also carried an article about the case. The authors, Jerold Solovy and Robert Byman, partners in the Chicago law firm of Jenner and Block, warned other lawyers: "Tell the judge the truth ......".

Qualcomm's top lawyer was to resign, and US Magistrate Judge Barbara Major referred six Qualcomm attorneys to the State Bar of California, for investigation of possible ethical lapses during the case.

The case turned on the timing of Qualcomm's attendance at meetings of a standards-setting committee called Joint Video Team (JVT) that led to the adoption of a video coding standard in 2003.

"JVT participants were required to disclose relevant patents and license them to anyone who followed the 2003 standard", wrote Solovy and Byman.

If Qualcomm had attended the JVT before adoption of the standard, then Qualcomm's action against Broadcom for breach of Qualcomm patents was waived.

Qualcomm asserted, however, that it was not a participant in the JVT prior to 2003. Judge Major said that Qualcomm had been 'aggressive' in its assertion that it had not participated in the JVT in 2002.

"And then the wheels started to come off", wrote Solovy and Byman. While preparing a Qualcomm employee for testimony, a Qualcomm lawyer "stumbled upon an August 2002 e-mail" welcoming the employee to the AVC, a sub-committee of the JVT.

Qualcomm's lawyers decided not to produce the email to the court, even though they were obliged under US law to do so.

Now, the Law.com legal opinion written by corporate counsel Alan Cohen, reinforces the Jenner and Block view, and concludes that Qualcomm's lawyers' behaviour was 'incredible'.

"If Qualcomm had participated in the group before the standard, known as H.264, was released in May 2003, it would not be able to sue Broadcom", writes Cohen in Law.com,

"Why?" asks Cohen, "Companies that were involved with the JVT had a duty to disclose any patents that covered the H.264 technology. If they participated and kept quiet, they'd be barred from suing for infringement - as Qualcomm was now doing on two of its video compression patents - down the road."

"Repeatedly, Broadcom sought documents that might have tied Qualcomm to the JVT", adds Cohen, "and Qualcomm repeatedly argued that it had nothing to do with the group until months after the standard was released, so there were no documents. It even filed an expert declaration in September 2006 - reviewed by its in-house and outside counsel - confirming the absence of any corporate records indicating Qualcomm's participation in the JVT. "

"Except there were documents", adds Cohen, "not just a few, but 46,000, many of which directly contradicted Qualcomm's assertions - and blew apart its case. Among them were e-mails from as far back as January 2002, discussing the JVT's work, noting who was driving to the next JVT meeting, and even picking the Starbucks where anyone wanting a ride could meet. None were produced until after trial (which Qualcomm lost in January)."

Senior Federal District Court Judge Rudi Brewster of San Diego, ruled that Qualcomm had engaged in "constant stonewalling, concealment and repeated misrepresentation concerning existing corporate documentary evidence."