E-Discovery Newsletter (February 2008)

February 19, 2008

Reducing E-Discovery Costs

Companies engaged in frequent litigation are facing skyrocketing e-discovery costs and many are carefully analyzing methods of managing these costs. The bulk of a company’s e-discovery budget is often spent on attorneys’ fees for time spent reviewing and “tagging” documents for privilege and responsiveness. Some commentators in this industry have estimated that companies typically spend from $4-$10 per document for document review. This cost can be reduced to $1-$3 per document if the company and its attorneys take several steps including: 1) having lower-cost contract attorneys review the documents; 2) reducing the number of documents that the attorneys have to review through deduplication and search term filtering; 3) increasing the speed at which the attorneys review the documents by utilizing technology designed to group documents by concept; and 4) using attorney teams experienced with the technology and the management of large-scale document reviews to maximize efficiency and accuracy. On large cases, it is important that companies take a hard look at these issues and employ a team that is experienced in the handling of document reviews in an efficient manner and that can employ technology that presents the documents in a way that minimizes attorney review time.

Notable Recent Rulings in E-Discovery

  • Court Awards Broadcom over $8 Million in Attorneys Fees and Refers Qualcomm’s Lawyers to the California State Bar Due to Discovery Misconduct: Qualcomm Inc. v. Broadcom Corp, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)(slip copy)

This case, which is rapidly taking on the legendary status of Zubulake, involved the failure by Qualcomm’s attorneys to turn over 46,000 e-mails, many of which were deemed highly relevant to Broadcom’s core defenses. Qualcomm brought the suit in 2005, alleging Broadcom’s infringement of several of Qualcomm’s patents. One of Broadcom’s key defenses hinged on whether Qualcomm participated in a Joint Video Team (“JVT”) in 2002 and early 2003. Broadcom argued that evidence of such participation would show that the patents at issue were unenforceable due to waiver. Throughout the case, Qualcomm’s lawyers repeatedly argued (and its witnesses testified in depositions) that Qualcomm did not participate in the JVT in the key time period. As the case progressed, however, e-mails surfaced that suggested that Qualcomm did, in fact, participate in the JVT in 2002. While preparing for trial, one of Qualcomm’s attorneys found an e-mail sent to one of Qualcomm’s witnesses in 2002 that welcomed her to a mailing list related to the JVT. That attorney then searched the witness’ laptop and found 21 other e-mails, some from 2002, where the parties discussed issues related to participation in the JVT. None of these e-mails had been produced to Broadcom. Nevertheless, Qualcomm’s trial team decided not to produce the e-mails, claiming that they were not responsive to the discovery requests. During trial, Broadcom discovered the existence of the e-mails and Qualcomm finally produced them. Ultimately, Broadcom learned that Qualcomm had more than 46,000 e-mails responsive to the discovery requests that it failed to produce. On January 7, after a number of oral arguments and an initial ruling by the court awarding attorneys’ fees, the court ordered Qualcomm to pay Broadcom over $8.5 million in attorneys’ fees (with credit for amounts already paid in response to a previous order) and referred a number of Qualcomm’s attorneys to the State Bar of California for an investigation in to possible ethical violations.