Orrick Team Collaborates on Amicus for Lawyers for Civil Justice in Key Discovery Test

February.06.2018

An Orrick team, partnering with Redgrave LLP, played a key role in an amicus brief filed on behalf of Lawyers for Civil Justice in an important legal test for standards in litigation discovery disputes.

The amicus urged a California federal judge to lift an unusual $300,000 sanctions order against Apple, a third party to high-profile Federal Trade Commission antitrust actions brought against Qualcomm. The judge imposed the sanctions against Apple for missing a deadline to produce documents sought in discovery by Qualcomm, an Apple competitor.

Lawyers for Civil Justice, a coalition of corporations, defense bar organizations and law firms promoting fairness in the civil justice system, argued in the amicus that the sanctions finding against Apple was unduly harsh and would establish extraordinary precedent for document production related sanctions under civil litigation rules. The amicus was filed in connection with Apple’s appeal of the sanctions order.

“The sanctions order here is completely out of step with settled law and public policy as the sanction was imposed without adequate notice, without request, without any demonstration of prejudice, without need, without findings and, respectfully, without proper legal justification,” the LCJ brief stated.

"Lawyers for Civil Justice was compelled to submit an amicus brief in this case because the order contravenes the basic principles that discovery sanctions be imposed sparingly — generally only where deliberate misconduct caused prejudice to other litigants — and narrowly tailored to remedy the prejudice," LCJ General Counsel Alexander Dahl said in a statement. "If not set aside, this sanctions order will add unpredictability and invite gamesmanship in a way that is inconsistent with the direction the Supreme Court has been moving to reform practice under the Federal Rules of Civil Procedure."

Orrick’s amicus effort was led by IP partner Alyssa Caridis and Wendy Butler Curtis, chair of the firm’s eDiscovery and Information Governance Practice, and also included partner Mark Davies and associate Thomas Fu. They partnered with co-counsel from Redgrave LLP on the brief.