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Qualcomm Inc. v. Broadcom Corp.

November 7, 2008


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


Doc. Nos. 792, 799, 804, 805, and 809

Presently before the Court are: (1) Broadcom's Motion to Compel Production of Documents [Doc. No. 792], (2) Responding Attorneys Batchelder, Mammen and Leung's ("BML") Motion to Compel Qualcomm to Produce Documents [Doc. No. 799], (3) Motion to Compel Responses to Stanley Young's Request for Production of Documents to Qualcomm [Doc. No. 804], (4) Responding Attorney Lee Patch's Motion to Compel Production of Documents by Qualcomm [Doc. No. 805], and (5) Qualcomm's Motion for Protective Order [Doc. No. 809]. Briefing on these motions was stayed pending the United States Court of Appeals for the Federal Circuit's decision on Qualcomm's appeal and the related cross-appeals.

Doc. No. 812. Following that Court's dismissal of the appeal, this Court issued a briefing schedule. Doc. No. 835. Pursuant to that schedule, the parties filed oppositions on October 3, 2008 [Doc. Nos. 838-843], and replies on October 10, 2008 [Doc. Nos. 849-850, 852-854]. The Court heard oral argument on the motions on October 29, 2008 at 2:00


The current proceedings stem from Broadcom's oral motion for sanctions during the trial of this case. During trial, Broadcom made an oral motion for sanctions when, contrary to Qualcomm's prior discovery responses and the testimony of its employees, it became apparent from documents disclosed during trial that Qualcomm had, in fact, participated in the Joint Video Team ("JVT"). Judge Brewster referred the discovery aspects of Broadcom's motion to this Court. Judge Brewster then issued his August 6, 2007 Order on Remedy for Finding of Waiver in which he found that Qualcomm's "counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007." Doc. No. 593 at 32. He further determined that:

Qualcommm counsel's discovery responses demonstrate that they were able to locate with alacrity company records from December 2003 forward and find four or more Qualcomm employees participating in proceedings of the [Joint Video Team ("JVT")]. Yet inexplicably, they were unable to find over 200,000 pages of relevant emails, memoranda, and other company documents, hundreds of pages of which explicitly document massive participation in JVT proceedings since at least January 2002. These examples of Qualcomm counsel's indefensible discovery conduct belie counsel's later implied protestation of having been "kept in the dark" by their client. at 38. In light of the fact that Qualcomm's attorneys had neither notice nor an opportunity to be heard before their litigation conduct was impugned by the August 6, 2007 order, and in order to afford Qualcomm's attorneys an adequate opportunity to be heard on the potential imposition of attorney sanctions, this Court issued an Order to Show Cause Why Sanctions Should Not be Imposed ("OSC"). Doc. No. 599.

Following briefing and hearings on the sanctions issue, the Court denied the Qualcomm attorneys' motion for an order finding that the federal common-law self-defense exception to the attorney-client privilege applied. Doc. No. 669. On October 3, 2007, Qualcomm filed the declarations of four of its employees, all of which pointed at Qualcomm's outside counsel as being to blame for the massive discovery failure that occurred in this case. Doc. Nos. 681, 683-684, 688. The following week, the Court heard oral argument on the OSC.

On January 7, 2008, the Court issued an Order Granting in Part and Denying in Part Broadcom's Oral Motion for Sanctions. Doc. No. 718 ("Sanctions Order"). Therein, the Court explained why it found sanctions appropriate for Qualcomm and six of its outside attorneys.

The sanctioned attorneys filed objections with Judge Brewster. Doc. Nos. 720-723.

By order dated March 5, 2008, Judge Brewster determined that the four declarations filed by Qualcomm on October 3, 2007 "introduced accusatory adversity between Qualcomm and its retained counsel regarding the issue of assessing responsibility for the failure of discovery." Doc. No. 744 at 5 ("Remand Order"). Because he found that "this accusatory adversity changed the factual basis which supported [this] court's earlier order denying the self-defense exception to Qualcomm's attorney-client privilege," Judge Brewster vacated this Court's January 7, 2008 Sanctions Order as to the six attorneys who objected and remanded the case to this Court for further proceedings not inconsistent with his order. Id. at 2, 5-6.

Five of the six attorneys, hereinafter referred to as the Responding Attorneys*fn1, and Broadcom served document requests on Qualcomm and each other as part of the Remand Proceedings. This order addresses motions arising from disputes over the scope of the requested discovery.


The scope of discovery is defined by Rule 26(b) of the Federal Rules of Civil Procedure, which permits litigants to obtain discovery regarding "any non-privileged matter that is relevant to any party's claim or defense..." Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at trial in order to be discoverable so long as it is "reasonably calculated to lead to the discovery of admissible evidence." Id. District courts enjoy broad discretion both to determine relevancy for discovery purposes, see Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and to limit discovery to prevent its abuse, see Fed. R. Civ. P. 26(b)(2).

A motion to compel is appropriate when a party fails to produce relevant documents requested pursuant to Rule 34. Fed. R. Civ. P. 37(a)(3)(B). An evasive or incomplete answer or response to a discovery request is to be "treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). A motion to compel must include certification that the movant has "in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery." Fed. R. Civ. P. 37(a)(1).

Rule 26(c) allows a party from whom discovery is sought to move for a protective order. Fed. R. Civ. P. 26(c)(1). In ruling on such a motion,

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place, for the ...

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