Catagory:Market Announcements

Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California; No. 2008-1348, 1381 & 1382, United States Court of Appeals for the Federal Circuit

In May 2008, Qualcomm filed an appeal in the U.S. Court of Appeals for the Federal Circuit regarding Judge Rudi M. Brewster’s March 5, 2008 “Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/07/08."  On May 19, 2008, sanctioned attorneys Batchelder, Mammen, Leung and Patch filed cross appeals.  In light of these appeals, Magistrate Judge Barbara L. Major concluded that jurisdiction had been transferred to the Court of Appeals for the Federal Circuit.  In an order dated May 29, 2008, Magistrate Judge Major sua sponte vacated all pending briefing and hearing dates and stated the court would refrain from ruling on the pending motions until after the Federal Circuit had addressed the appeal and, if it found it appropriate to do so, remanded the case back to the district court.  Magistrate Judge Major later denied Broadcom’s motion for reconsideration of the May 29 order.

On June 3, Broadcom Corporation filed its Emergency Motion to Dismiss Appeal of Qualcomm Incorporated, and two days later, responding attorneys-appellees/cross appellants Batchelder, Mammen, and Leung filed their non-opposition.  Broadcom’s Motion argued that Qualcomm’s appeal should be dismissed for lack of jurisdiction because it impermissibly seeks review of an interlocutory district court order remanding for further proceedings, i.e., a non-final order.  Broadcom argued that there is still much to be done in the district court, and that the parties were in the midst of discovery when Qualcomm’s notice of appeal halted the proceedings.  In addition, Broadcom argued that the CREDO process arising out of the sanctions proceedings was still underway, and that the final CREDO protocol would necessarily be informed by the ongoing sanctions proceedings before the magistrate judge.

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By K&L Gates attorneys Todd L. Nunn and Trudy D. Tessaro

This article appears in the August 2008 edition of the King County Bar Bulletin, and begins:

Want to understand more about e-discovery, other than that the “e” stands for “excitement?”  Need a little light summer reading?  Well, you are in luck.  Never before have there been so many sources of e-discovery law.

In the old days (a few years ago), only case law dealt with the important issues that are central to e-discovery: preservation, collection, search/review, protection of privilege and production.  Now these issues are addressed by federal rules, state rules, numerous scholarly best practices and guidelines, model rules and guides for judges, not to mention (and this article really doesn’t with one exception) innumerable articles and blogs.

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Newman McIntosh & Hennessy v. Bush, Civ. No. 08-00787 (CKK) (D.D.C.)

This lawsuit seeks declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.  See our original post about the lawsuit here, which includes a link to the Amended Complaint.

Acumen Legal Services, the India-based legal services company named as a defendant in the case, has now filed a motion to dismiss for lack of subject matter and personal jurisdiction.  In the motion, Acumen argues:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition.  The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad.  NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, not excluding in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

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We are pleased to announce that our searchable case database now contains over 1,000 e-discovery cases from state and federal jurisdictions, with new cases being added every week.  Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.

The database is still searchable by keyword, or by any combination of 28 different case attributes, several of which track the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

Curious about e-discovery developments that have occurred since the first of the year?  Visit the database and enter "2008" in the keyword search box to see an overview of the roughly 100 cases involving electronic discovery issues that we’ve tracked so far this year.

Click here to visit the database.  We hope you find it to be a helpful resource for tracking the development of e-discovery case law, and use it often.  Happy searching!

Nebraska
On June 4, 2008, the Nebraska Supreme Court adopted amendments to Neb. Ct. R. of Discovery, 33, 34, and 34A that address the discovery of electronically stored information.  The amended rules are available here, and went into effect June 18, 2008.

Iowa
On February 14, 2008, the Supreme Court of Iowa approved proposed amendments to the Iowa Rules of Civil Procedure addressing e-discovery.  The amendments, which took effect May 1, 2008, are available here and include changes to the following rules:

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The law firm of Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, has filed a federal lawsuit seeking declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.  The complaint explains the nature of the action as follows:

India-based Acumen Legal Services (India) Pvt., Ltd. (“Acumen India”) has solicited Newman McIntosh & Hennessey, LLP (“NMH”) to provide litigation support services to NMH from its offices in India.  Acumen India is part of a fast-growing industry of Legal Process Outsourcers (“LPO”) that promise lower litigation support costs through outsourcing litigation support services to foreign nationals who live and work overseas.  Acumen India, and other such LPOs (“litigation process outsourcers”), provides its litigation support services through the electronic transmission of documents and other data from U.S.-based law firms to Acumen India’s offices.  In its solicitation of NMH’s business, Acumen India informed NMH that it already provides such litigation support to certain District of Columbia and U.S. based attorneys (herein designated as “John Doe, Esq. and Jane Doe, Esq.”).  On information and belief, John Doe, Esq. and Jane Doe, Esq. are competitors to NMH or are adverse to NMH clients in litigation.

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Proposal Would Set New Electronic Records Management Requirements for U.S. Companies

Yesterday, the Securities and Exchange Commission voted unanimously to formally propose using new technology to get financial information to investors faster, more reliably, and at a lower cost.  The proposed rule would require all U.S. companies to provide financial information using interactive data beginning next year for the largest companies, and within three years for all public companies.

The SEC’s proposed schedule would require companies using U.S. Generally Accepted Accounting Principles with a worldwide public float over $5 billion (approximately the 500 largest companies) to make financial disclosures using interactive data formatted in eXtensible Business Reporting Language (XBRL) for fiscal periods ending in late 2008.  If adopted, the first interactive data provided under the new rules would be made public in early 2009.  The remaining companies using U.S. GAAP would provide this disclosure over the following two years.  Companies using International Financial Reporting Standards as issued by the International Accounting Standards Board would provide this disclosure for fiscal periods ending in late 2010.  The disclosure would be provided as additional exhibits to annual and quarterly reports and registration statements.  Companies also would be required to post this information on their websites.

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K&L Gates Pittsburgh partner David R. Cohen’s presentation at the recent RIMS 2008 Conference was highlighted in the May 5th edition of Business Insurance.  At the San Diego event, Mr. Cohen recommended to the insurance industry crowd that companies create an e-discovery team and institute a records management plan.  He also explained how the failure to produce electronic records timely and properly can result in significant penalties for litigants.

Read the complete article online here.

The Seattle Times, April 29, 2008
By Benjamin J. Romano, Seattle Times technology reporter

Microsoft has developed a small plug-in device that investigators can use to quickly extract forensic data from computers that may have been used in crimes.

The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB "thumb drive" that was quietly distributed to a handful of law-enforcement agencies last June.  Microsoft General Counsel Brad Smith described its use to the 350 law-enforcement experts attending a company conference Monday.

The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime.  It can decrypt passwords and analyze a computer’s Internet activity, as well as data stored in the computer.

It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data.  Instead, the investigator can scan for evidence on site.

More than 2,000 officers in 15 countries, including Poland, the Philippines, Germany, New Zealand and the United States, are using the device, which Microsoft provides free.

Read the full article here on the Seattle Times website.

On March 20, 2008, the court convened a status hearing and counsel reported their progress toward developing the CREDO protocol ordered by the court.  The court also conferred with the parties regarding the status of the case in light of Judge Brewster’s March 5, 2008 Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/07/08.  Because Judge Brewster vacated the 1/07/08 Sanctions Order to the extent it required the named Responding Attorneys to participate in the CREDO project, the Magistrate Judge observed that only Qualcomm remained responsible for completing the protocol.  Thus, the court ordered Qualcomm to submit a final version of the CREDO protocol by Thursday, April 10, 2008.  (If it was filed by the court’s deadline, the protocol does yet not appear to be publicly available.)

On April 2, 2008, counsel for the Responding Attorneys and Broadcom submitted their Proposed Discovery Plan in preparation for the evidentiary hearing on attorney sanctions ordered by the District Judge. Read More