Lessons from the Qualcomm Mess

An extremely uncomfortable meeting took place on a Tuesday morning in late January, when a dozen or so lawyers convened in the chambers of Barbara Major, a U.S. magistrate judge in San Diego. In-house counsel at telecom giant Qualcomm Incorporated accounted for five of the lawyers, while six were law firm attorneys who formerly represented Qualcomm (five from Day Casebeer Madrid & Batchelder and one from Heller Ehrman). Relations between the formerly retained counsel and their client were strained, to say the least. Qualcomm had refused to give up attorney-client privilege so that the outside counsel could defend themselves in the matter at hand. And one lawyer from Wilmer Cutler Pickering Hale and Dorr was there as an interested observer, representing Broadcom Corporation, a telecom rival that has emerged victorious in a string of patent litigations against Qualcomm.

The in-house Qualcomm lawyers and their former outside counsel were there to have their knuckles rapped?big-time?in the aftermath of a notorious patent trial last year in which the federal district court judge decided that there was clear and convincing evidence that Qualcomm had intentionally hidden smoking-gun documents from Broadcom and its attorneys. The meeting was the beginning of a lengthy court-ordered mea culpa. The 11 lawyers?each of whom had his own reputation to protect?were ordered by the magistrate judge to together write a detailed analysis of what went wrong. Was there insufficient or faulty communication between the client and retained counsel? Or between the junior lawyers doing the discovery and the senior lawyers arguing the case in court?