But the lawyers should have found them. It was a core issue,
They did find them and used them to prepare the witness for her trial testimony. They were not produced to BRCM despite the fact that they were presumably requested early on, during discovery.
Broadcom on the same day, 1/24/07, made an "oral motion for sanctions re: production of documents" against Q on which I don't see a ruling or a transcript. I suppose it is still technically pending. It clearly refers to the unproduced emails as it relates to the lady who first talked about them. These kinds of motions often go to the wayside after a trial is concluded. Maybe not, Rudi seems like a straight arrow and won't put up with game playing.
All this happened literally they day before the jury got the case, at the very end. And if the oral motion was made in front of the jury, who got to witness the motion for sanctions and its grounds, then that would be, ah, not very good for Q. Most judges excuse the jury for these kinds of proceedings, but a sharp lawyer like Lee would have started his arguments about them before the jury is excused. I've done similar things, all perfectly OK in the field and heat of combat.
So, if the jury heard that Q was hiding evidence, then it might have been influenced by the shenanigans. The judge might have given them an instruction to disregard any argument Lee may have made, but that is done after the horse is out of the barn. This is all speculative, as it is impossible to tell whether the jury heard about the missing emails.
So, IMO, the Q lawyers either did an exteremely poor job of document gathering in preparation for trial or intentionally hid the documents or got bushwhacked. The fact that they had the documents in their possession then had to produce them after the witness discussed them on the very last day suggests to me that they probably hid them, but it is hard to say to a 100% certainty.
Where this bit of inept lawyering will hurt will be on the appeal. After making a record of the hidden emails, BRCM's appellate brief will skewer Q for its lapse. Ouch. |
