Legal “Enron” shines light on e-discovery
Legal “Enron” shines light on e-discovery
Month Date, 2006: Labelled the "legal Enron", the US contempt trial of six lawyers in the fallout of Qualcomm v Broadcom has shone new light on the importance of electronic discovery.
>The effect of this case on Australian legal practise will be the subject of a presentation from Maureen Duffy, National Practice Coordinator of Freehills, at the 2nd Annual Information Management and E-Discovery Summit in Sydney on June 17 and 18.
>The US case stems from a patent infringement trial where a Qualcomm witness admitted that he had critical e-mails that were not disclosed to the opposition despite repeated demands. The witness said senior counsel knew that these e-mails existed and were not disclosed.
Qualcomm later lost the trial and further inquiry revealed more than 200,000 pages of relevant e-mails were not disclosed. In the contempt hearing that followed, Qualcomm claimed attorney-client privilege which gagged the six outside counsel from speaking in their own defence. That decision has now been reversed and the six external lawyers subjected to a new contempt trial.
"This is being hailed as the most important case of the year," Duffy said. "Not because anyone disagrees, if proved true, but because it shines a light on what is expected of an attorney and client during litigation. In this electronic age, locating relevant evidence often involves the complicated task of searching emails and other electronic information."
She said the American Bar Association had guidelines and checklists that lawyers should follow and some firms have recommended that an e-discovery specialist be consulted on every litigation. So how will this affect Australia?
"Australia is still adjusting to the fact that evidence has almost completely shifted from paper to electronic. Gathering evidence is no longer an exercise carried out by junior lawyers under supervision, but a complicated duty requiring sophisticated oversight and inquiry.
"Australian courts will be keenly aware of what is happening in the rest of the world. The 'just, quick and cheap' principle will be tested. Undoubtedly, courts will be placing limits on the extent of discovery obligations as was clear in the Federal Court in Melbourne recently in the litigation involving ANZ Bank and Opes Prime.
"What is certain is that litigating in this e-world will not be business as usual."
Duffy will be presenting at the two-day event alongside NSW Attorney General John Hatzistergos; Michelle Mahoney, Applied Legal Technology, Mallesons Stephen Jacques; and Justice Brian Tamberlin.