Electronic Legalities

Recent court cases highlight the danger of such practices. In a Jan-uary court decision, San Diego–based Qualcomm, Inc., was ordered to pay $8.5 million to its opponent in a lawsuit, Broadcom Corporation of Irvine, California, for intentionally withholding tens of thousands of key electronic documents that were requested as part of discovery. The suit filed by Qualcomm alleged that Broadcom was infringing on two of its patents for video compression technology; Broadcom countered that Qualcomm had a duty to disclose its technology to an independent committee that was establishing industry standards for the technology. But during the trial, it became clear that Qualcomm had not acted in good faith and produced the electronic documents and e-mails that Broadcom attorneys had requested. The court ruling noted: “Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith . . .”

Electronic discovery can be divided into two categories:

1. Electronic information that is used as a matter of everyday business and is reasonably accessible.

2. Documents and e-mail that are saved to backup tape and thus more difficult to access.

The reality is that most digital information leaves a fingerprint and can be tracked down using the latest in computer forensic tools.

Organizations have greater duty to preserve relevant files that fall into the former category, such as word processing documents, spreadsheets, presentations, and e-mail, than they do information that is stored on backup tape to protect it against system failure, hard drive crashes, or natural disaster.

The onus usually falls to in-house counsel to issue a “litigation hold” on relevant electronic information once a lawsuit is known to be imminent—and to continually remind employees of the need to preserve that information, particularly key players cited in a case.

In addition, careless communications can come back to haunt their senders, if they are involved in a lawsuit and attorneys think the communication is relevant to the case. All employees also need to understand that text or instant messages they send don’t just vanish but are often stored on backup devices and can be used as part of electronic discovery. Text messages sent by cell phone, for example, remain in both the phone’s memory card and in the phone’s internal memory, and can be easily retrieved by technology sleuths. The reality is that most digital information leaves a fingerprint and can be tracked down using the latest in computer forensic tools.