What Should Be Keeping You Awake at Night: Litigation Holds

The Problem

Any experienced trial lawyer who is called upon to handle a complex business dispute or government investigation will agree that the timely issuance and the proper management of a "litigation hold" is critical. One very recent federal case, while not addressing directly the failure to issue a "hold," highlights the problem. In January 2008, a federal court in California fined the company Qualcomm more than $8 million and sanctioned six of its lawyers for failure to produce relevant emails on a timely basis. Qualcomm paid the full penalty in February, but on March 5, 2008, the same Court went further and held that Qualcomm's attorneys were not bound to honor the attorney client privilege. They are now allowed to defend their own conduct by testifying against Qualcomm. The Qualcomm decision is not an aberration. It is further evidence of a trend for courts to issue severe sanctions when