Mannerisms

Earlier this month, US Magistrate Judge Barbara Major issued a sanction order, and referred six attorneys to the State Bar of California, for investigation of possible ethical lapses during a case in which they were acting for Qualcomm.

In their warning to colleagues, the two author-lawyers, Jerold Solovy and Robert Byman, write: These six lawyers, judging from their bios, are fine lawyers at the top of the profession. If this happened to them, it could happen to us. It could happen to you.”

The case involved was Qualcomm vs Broadcom. 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”, write 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.

“And then the wheels started to come off”, write 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.

“Major concluded that the lawyers chose to ignore obvious signs that Qualcomm's production was incomplete”, write Solovy and Byman, “the lawyers could -- should -- be sanctioned because they took the superficially suspect word of their client that production was complete”,

At the court hearing, cross-questioning of the Qualcomm employee revealed her 2002 email exchanges. The court found for Broadcom.

Then, after the verdict, a Qualcomm lawyer, according to Solovy and Byman: “Advised the court that Qualcomm had located a few more "relevant unproduced documents ... that appear to be inconsistent with certain arguments made on Qualcomm's behalf." By a few, we mean 46,000. Forty-six thousand documents, 300,000 pages of relevant unproduced documents. The documents were located by the not terribly exhausting vehicle of searching the e-mail archives of less than two dozen key Qualcomm employees, searches that had not earlier been undertaken.”

The article ends with many warnings to lawyers about accepting their clients’ assurances too readily, concluding with the advice:

“Oh, and tell the judge the truth”.

The lesson for the high-technology industry seems to be: if you're having standards-setting meettings, for goodness' sake keep records of who attended, and what was said.