School of Computer and Information Science, Edith Cowan University, Perth, Western Australia
Electronic discovery has been the source of difficult challenges for courts, lawyers, and litigants from the beginning. The methods, document formats, and scope of electronic discovery have all contributed to the difficulties encountered. The seminal case in the United States that underscores the nature of the difficulties and challenges facing lawyers and courts in electronic discovery is Qualcomm v. Broadcom. While the case has been cited as an example of the ethical issues facing lawyers who do not follow the rules of discovery, the lessons go well beyond ethical issues. All major common law countries, including Australia, New Zealand, United Kingdom, Canada, South Africa, and the United States have recently updated their rules of civil procedure regarding the electronic discovery process in order to facilitate the electronic discovery process. The authors offer five key lessons to be drawn from this case including the importance of efficiently managing electronic discovery, the importance of the meet-and-confer discovery conference, the importance of retaining an electronic discovery expert, the importance of being proactive in the discovery process, and recognizing the limitations of relying entirely on key word searches.