• Attorneys Allowed to Break Privilege Following Client's Filing of Declarations Blaming Discovery Errors on Attorneys
  • June 30, 2008
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Qualcomm Inc. v. Broadcom Corp., 2008 WL 638108 (S.D.Cal. 2008)

    Brief Summary
    A client’s accusation of attorney misconduct in declarations seeking to avoid the imposition of sanctions on the client opened the door for attorneys to break though the attorney-client privilege and seek to exculpate themselves by blaming the client.

    Complete Summary
    In resolving a discovery dispute between opposing parties Qualcomm and Broadcom, a federal magistrate judge sanctioned Qualcomm and six of Qualcomm’s outside counsel. (See our February 7, 2008, Alert entitled, “Warning Signs Should Have Led Sanctioned Attorneys to Inquire Into Adequacy of Client’s Discovery Production.”)

    Prior to that order, the six had sought to defend themselves in part based on ostensibly privileged communications with Qualcomm. Qualcomm refused to waive privilege, and the magistrate had refused to apply the federal common law self-defense exception to disclosing privileged information. In seeking to avoid sanctions on Qualcomm, however, four Qualcomm employees filed declarations critical of Qualcomm’s outside counsel.

    Sitting in review of the magistrate’s decision, the district court judge held that due process required that the attorneys be entitled to reveal what would otherwise be attorney-client privileged communications in order to defend themselves. Although this result would not have been required if Qualcomm had not filed declarations placing blame upon the attorneys,  the “accusatory adversity between Qualcomm and its retained counsel regarding the issue of assessing responsibility for the failure of discovery” triggered “the self-defense exception to Qualcomm’s attorney-client privilege.”  Id. at *3.

    Significance of Opinion
    This opinion will allow the attorneys to seek to get out from under sanctions by blaming their client. However, it remains to be seen whether this decision will in fact change the ultimate sanctions decision.