There has been no shortage of articles in the e-discovery blogosphere about the Qualcomm case (heck, we’ll even own up to jumping on the bandwagon and writing a couple ourselves). However, if in the rush of events leading up to LegalTech you haven’t had a chance to read the details of U.S. Magistrate Judge Barbara Major’s recent sanction order, it’s worth taking a few minutes to read through it (or, for an excellent overall summary, see this article on law.com).
The most striking aspect of the judgment, which is completely overlooked by many vendor articles seeking to spin it to their advantage, is the fact that this case wasn’t about a failure of e-discovery technology. It wasn’t about the attorneys not thinking enough about the best keyword strategy, or not understanding the need for conceptual search to ferret out additional responsive documents. Rather, at a key point in the trial, 21 highly relevant emails were discovered, but according to the order, “the Qualcomm trial team decided not to produce these newly discovered emails to Broadcom, claiming they were not responsive to Broadcom’s discovery requests.” Judge Major goes on: “The attorneys ignored the fact that the presence of the emails…undercut Qualcomm’s premier argument…The Qualcomm trial team failed to conduct any investigation to determine whether there were more emails that also had not been produced.”
Assuming that all of the facts are before us, this was not a computer algorithm problem. It was a human judgment problem.
Don’t get me wrong. Leveraging the right e-discovery technology is important, but not in the way that many vendors would have you believe. Search and analysis is becoming table stakes. What’s needed today are solutions that provide a system of “checks and balances” to track and monitor documents throughout the discovery process, making it harder for documents to be overlooked or ignored in the way that they seem to have been by the Qualcomm team – while enabling enterprises to have more ownership over all aspects of e-discovery.
Such technology will be the enabler, but in the end, it will be people – very likely in the form of an e-Discovery Team – that will save you from Qualcomm’s fate.