Electronic Discovery is with us, has been regulated, and there are now standards for its use in litigation. Attorneys for clients now have to advise on how to store, produce, resist demands, and comply with the appropriate rules.
Whenever there is general agreement upon a standard of practice, the question of deviation from that standard arises. This is the central tenant of legal malpractice: if there is a standard, attorneys must adhear.
Duane Morris reports on the Quallcom case: "The U.S. District Court for the Southern District of California’s latest opinion in Qualcomm Inc. v. Broadcom Corp., Case No. 05cv1958 (BLM) (S.D. Cal.), issued on January 7, 2008, serves as a warning to all corporate litigants regarding electronically stored documents and emails. This warning is especially applicable for in-house counsel, of which several were engulfed in this quagmire. The court ordered Qualcomm to pay all of Broadcom’s litigation costs — around $8.5 million — for "intentionally with[holding] tens of thousands of decisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom." In addition, the attorneys most heavily involved were referred to the California State Bar for violations of their ethical duties. "