MSBA Computer and Technology Law Section

Communications Decency Act held to immunize gripe site operator from liability for hosting allegedly defamatory content authored by third party

In this October 2007 ruling from the U.S. Court for the District of Arizona, the court ruled that, although, "At common law, publishers are generally liable for the defamatory statements authored by third-parties," the Communications Decency Act (CDA) shields gripe site operators from liability of this nature. In so doing, the court evaluated the function of "author," as opposed to, "publisher," noting that it is, “well established that notice of the unlawful nature of the [content] provided is not enough to make it the [website operator’s] own speech” (quoting Universal Commc’n Sys., Inc. v. Lycos, 478 F.3d 413, 420 (1st Cir. 2007)) and that "Defendant’s failure to remove the three statements was an 'exercise of a publisher’s traditional editorial functions' and does not defeat CDA immunity." Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).  Finally, the court noted, "minor and passive participation in the development of content will not defeat CDA immunity, which can even withstand more active participation."

$8.5M sanction for e-discovery violations

For the current 'good faith' discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents.

So said the Court in Qualcomm v. Broadcom, (S. D. Calif.) in its Jan. 7, 2007 Order imposing sanctions and referring six attorneys to the State Bar of California Office of Chief Disciplinary Counsel because plaintiff failed to produce emails that were clearly requested in discovery and witnesses testified falsely on an issue that "became crucial to the...litigation."

One witness identified twenty-one emails that were believed to be both substantially probative and relevant, yet counsel did not produce the emails or conduct a further search. After the trial, Qualcomm's general counsel "admitted Qualcomm had thousands of relevant unproduced documents and that their review of these documents 'revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm's behalf at trial and in the equitable hearing following trial' " There were over 46,000 such documents. The Court further noted:

It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm's document search and production...the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm's document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation.

The Court ordered Qualcomm to pay $8.5M to Broadcom but, because "the attorneys’ fees sanction is so large," the Court declined to fine Qualcomm, noting that, "If the imposition of an $8.5 million dollar sanction does not change Qualcomm’s conduct, the Court doubts that an additional fine would do so."

The court referred six attorneys to the attorney regulation counsel, finding:

the Sanctioned Attorneys assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs...the Sanctioned Attorneys then used this lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.