A Supreme Court Justice Writes the Preface to a Sedona Conference Journal on the Cooperation Proclamation

In a major coup for The Sedona Conference and electronic discovery specialists everywhere, Associate Justice Stephen Breyer of the United States Supreme Court has weighed in on e-discovery and written the preface to a special supplement of the Sedona Conference Journal, The Sedona Conference Journal, Vol. 10 Supplement, Fall 2009. Here is an excerpt from the Preface by Justice Breyer:

[The articles in this Supplement] suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases.

I commend everyone to read this special supplement, which will be released this week. I also join in Justice Breyer’s urging that you consider the articles carefully and try to apply these principles in your efforts to try cases. You might also want to give a copy of the Journal to the Bill E. Boie types down the hall from you. You know the ones; the old-school litigators who still think that discovery, especially e-discovery, is an exercise in hide-the-ball litigation tactics, and cooperation is what you pretend to do when the judge is looking. Anecdotal reports suggest that Bill E. Boie types are still in the majority, but, as Bob Dylan said, the times they are a-changin’.

The Case For Cooperation

The Sedona Cooperation Proclamation is a brief document of only two and a half pages. It is well summarized by its conclusion which states:

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

Although the proclamation is short, it contemplated the later creation of more extensive writings, including this Journal, and its lead article, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield, an attorney with Hausfeld LLP in Washington D.C. The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. The contributing editors were John D. Luken, Dinsmore & Shohl LLP; Charles R. Ragan, Huron Consulting Group; Christopher M. Schultz, Perkins Coie LLP; and, Gregory B. Wood, Fulbright & Jaworski L.L.P.

The Case For Cooperation provides a Brandeis brief type of argument for cooperation in the field of discovery, particularly electronic discovery, where costs can otherwise quickly spiral out of control. It delineates two levels of cooperation:

Cooperation in this context is best understood as a two-tiered concept. First, there is a level of cooperation as defined by the Federal Rules, ethical considerations and common law. At this level, cooperation requires honesty and good faith by the opposing parties. Parties must refrain from engaging in abusive discovery practices. The parties need not agree on issues, but must make a good faith effort to resolve their disagreements. If they cannot resolve their differences, they must take defensible positions.

Then, there is the second level. While not required, this enhanced cooperative level offers advantages to the parties. At this level, the parties work together to develop, test and agree upon the nature of the information being sought. They will jointly explore the best method of solving discovery problems, especially those involving electronically stored information (“ESI”). The parties jointly address questions of burden and proportionality, seeking to narrow discovery requests and preservation requirements as much as reasonable. At this level, cooperation allows the parties to save money, maintain greater control over the dispersal of information, maintain goodwill with courts, and generally get to the litigation’s merits at the earliest practicable time.

The Case For Cooperation is a well research article with 159 footnotes. It provides an important reference of the laws and policies behind the Cooperation Proclamation. It is also a persuasive document to show to the Bill E. Boie types that their brand of zealous discovery, hurts, rather than helps their clients. Section five of the article shows the benefits of cooperation, focusing on the economic incentives and strategic benefits. It also explains what cooperative discovery is and is not:

Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay.

Cooperation defined in this manner is not only largely compelled by the attorney’s obligation to comply with legal rules, ethical obligations and the professional rules of conduct, but it also offers the client the benefits of creating and maintaining credibility with the court and the opposition, enhancing the effectiveness of advocacy, and minimizing client costs and risks.

ACT

The Proclamation calls for a three-part process to implement a new cooperative approach to discovery summarized by the acronym ACT. The first step is Awareness, the second is Commitment, and the third is Tools. The first step of consciousness-raising was accomplished by the Proclamation itself and related publicity and announcements. The Case for Cooperation, and other articles in the Journal and elsewhere, are part of the second step of Commitment. This is described in the Proclamation as “Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding.” The third step, Tools, is the final stage that will continue for many years. The Cooperation Proclamation describes this activity as:

Developing and distributing practical “toolkits” to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency. Components will include training programs tailored to each stakeholder; a clearinghouse of practical resources, including form agreements, case management orders, discovery protocols, etc.; court-annexed e-discovery ADR with qualified counselors and mediators, available to assist parties of limited means; guides for judges faced with motions for sanctions; law school programs to train students in the technical, legal, and cooperative aspects of e-discovery; and programs to assist individuals and businesses with basic e-record management, in an effort to avoid discovery problems altogether.

The Tools stage is really a Schools stage. Information alone is a fine tool, but it is nearly worthless unless you know how to use it. The indispensable knowledge of how to use tools, especially sophisticated tools created by others as Sedona here contemplates, takes instruction, perseverance, and time. As Bob Dylan said: “If your time to you Is worth savin’ Then you better start swimmin’ Or you’ll sink like a stone For the times they are a-changin’.”

The Bull’s-Eye View of Cooperation in Discovery

The next article in the Journal was written by Professor Steven S. Gensler of the University of Oklahoma College of Law. It is entitled The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.). It discusses three different types of cooperation as illustrated in the graphic below and how they can all be part of an integrated strategy.

This article provides an academic, theoretical basis for the concepts of cooperation and related laws and policies. As Professor Gensler correctly notes:

The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for advancing their clients’ interests and not as a retreat from their duties as loyal advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.

These default mode discovery-battlers remind me of Bob Dylan’s one song that mentions both lawyers and professors, Ballad Of A Thin Man:

You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

…

You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

It seems like many trial lawyers today are in the position of the fictional Mister Jones in Dylan’s song. They know something important is happening with the computerization of society and explosion of electronic information, but they don’t really know what it is. They may attend seminars and CLEs, and some may try hard, but still not know what they’ll say when they get home. That in large part that depends on the quality of the CLEs, on whether the schools can really teach the tools.

Mancia v. Mayflower Begins a Pilgrimage
to the New World of Cooperation

The last article in the Sedona Journal on Cooperation discusses the first twelve cases to cite the Sedona Cooperation Proclamation. It was written by yours truly and is entitled Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.). The first opinion to cite and endorse the proclamation was Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D.Md. Oct. 15, 2008) by Judge Paul W. Grimm. The next eleven opinions to follow Grimm in Mayflower were:

Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008).
Gipson, et al v. Southwestern Bell. Tel. Co., 2008 U.S. LEXIS 103822 (D.Kan. Dec. 23, 2008).
Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. Dec. 24, 2008).
S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, Fed. Sec. L. Rep. P 95,045 (S.D.N.Y. Jan. 13, 2009).
William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009).
Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. April 6, 2009).
Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. May 19, 2009).
Dunkin’ Donuts Franchised Restaurants LLC v. Grand Cen. Donuts, Inc., 2009 WL 1750348 (E.D.N.Y. June 19, 2009).
Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Ass’n, 2009 WL 2243854 (S.D.Ohio July 24, 2009).
In re Direct Southwest, Inc., Fair Labor Standards Act (FLSA) Litigation, 2009 WL 2461716 (E.D.La. Aug. 7, 2009).
Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009).

My article discusses these cases, most of which are already well known, and explains why the judges referred the parties to the Proclamation. I also show what the first cases have in common, aside from the obvious of uncooperative attorneys. These first cases primarily deal with technical disputes concerning form of production, metadata, and search protocols, mainly keyword lists. In my opinion, attorneys only squabble about such relatively inconsequential technical issues because they do not understand e-discovery. They know something is happening here, but they don’t know what it is.

They fight over form of production because they do not grasp that metadata is not really that important, and it is a waste of client money and court time to hide it. They also fail to do simple things, like decide what form of production they want when they make a production request, not afterwards. I have written about this competence issue before in Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules.

They fight over search protocols because they really have no idea how to find the relevant needles in the vast collections of electronic haystacks that their clients foolishly maintain. Since they do not know what to do, they just propose keyword search terms. They pretend like e-discovery search is the same as a Google or Westlaw search because that is all they know. They then engage in foolish games of competing keyword lists that quickly lead nowhere. I have also written about this before in Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search.

The twelve cases that I write about are all sounding the chimes of cooperation, heralding the warriors whose strength is not to fight. As Dylan wrote in Chimes of Freedom:

Far between sundown’s finish an’ midnight’s broken toll
We ducked inside the doorway, thunder crashing
As majestic bells of bolts struck shadows in the sounds
Seeming to be the chimes of freedom flashing
Flashing for the warriors whose strength is not to fight
Flashing for the refugees on the unarmed road of flight
An’ for each an’ ev’ry underdog soldier in the night
An’ we gazed upon the chimes of freedom flashing.

Almost 100 Judges Have Endorsed
the Cooperation Proclamation

To date almost 100 judges have signed onto the Proclamation. I expect the one-hundredth will come soon and I will let you know who it is. In the meantime, here are the judges who have endorsed the Sedona Cooperation Proclamation so far:

ALABAMA Hon. John Carroll Retired Birmingham Hon. William E. Cassady U.S. District Court for the Southern District of Alabama Mobile

ARIZONA Hon. Andrew D. Hurwitz Vice Chief Justice, Arizona Supreme Court Phoenix

CALIFORNIA Hon. Robert Block U.S. District Court for the Central District of California Los Angeles Hon. Susan Illston U.S. District Court for the Northern District of California San Francisco Hon. Elizabeth D. LaPorte U.S. District Court for the Northern District of California San Francisco Hon. Louisa S. Porter U.S. District Court for the Southern District of California San Diego Hon. David C. Velasquez Orange County Superior Court Santa Ana Hon. Carl J. West Los Angeles County Superior Court Los Angeles

COLORADO Hon. Morris Hoffman Colorado 2d Judicial District Court Denver Hon. Craig B. Schaeffer U.S. District Court for the District of Colorado Denver

DISTRICT OF COLUMBIA Hon. Francis M. Allegra U.S. Court of Federal Claims Washington Hon. Herbert B. Dixon, Jr. Superior Court of the District of Columbia Washington Hon. John M. Facciola U.S. District Court for the District of Columbia Washington Chief Judge Royce C. Lamberth U.S. District Court for the District of Columbia Washington Hon. Gregory Mize Retired Washington

FLORIDA Hon. Barry L. Garber U.S. District Court for the Southern District of Florida Miami Hon. Thomas E. Morris U.S. District Court for the Middle District of Florida Jacksonville Hon. Thomas B. Smith Ninth Judicial Circuit Orlando.

ILLINOIS Hon. Martin C. Ashman U.S. District Court for the Northern District of Illinois Chicago Hon. David G. Bernthal U.S. District Court for the Central District of Illinois Urbana Hon. Geraldine Soat Brown U.S. District Court for the Northern District of Illinois Chicago Hon. Jeffrey Cole U.S. District Court for the Northern District of Illinois Chicago Hon. Susan E. Cox U.S. District Court for the Northern District of Illinois Chicago Hon. Morton Denlow U.S. District Court for the Northern District of Illinois Chicago Hon. Peter Flynn Illinois Superior Court Chicago Hon. John A. Gorman U.S. District Court for the Central District of Illinois Peoria Hon. James F. Holderman Chief Judge, U.S. District Court for the Northern District of Illinois Chicago Hon. Arlander Keys U.S. District Court for the Northern District of Illinois Chicago Hon. P. Michael Mahoney U.S. District Court for the Northern District of Illinois Rockford Hon. Michael T. Mason U.S. District Court for the Northern District of Illinois Chicago Hon. Nan Nolan U.S. District Court for the Northern District of Illinois Chicago Hon. Sidney Schenkier U.S. District Court for the Northern District of Illinois Chicago Hon. Susan P. Sonderby U.S. District Court for the Northern District of Illinois Chicago Hon. Maria Valdez U.S. District Court for the Northern District of Illinois Chicago

INDIANA Hon. Kenneth H. Johnson Marion County Superior Court Indianapolis.

KANSAS Hon. J. Thomas Marten U.S. District Court for the District of Kansas Wichita Hon. James P. O’Hara U.S. District Court for the District of Kansas Kansas City Hon. K. Gary Sebelius U.S. District Court for the District of Kansas Kansas City Hon. David Waxse U.S. District Court for the District of Kansas Kansas City

LOUISIANA Hon. Eldon E. Fallon U.S. District Court for the Eastern District of Louisiana New Orleans Hon. Sally Shushan U.S. District Court for the Eastern District of Louisiana New Orleans

MARYLAND Hon. Lynne A. Battaglia Maryland Court of Appeals Annapolis Hon. Stuart R. Berger Circuit Court for Baltimore City Baltimore Hon. Paul W. Grimm U.S. District Court for the District of Maryland Baltimore Hon. Michael Mason Montgomery County Circuit Court Rockville Hon. Albert Matricciani Maryland Court of Special Appeals Baltimore Hon. Steven I. Platt Prince Georges County Circuit Court Upper Marlboro

MASSACHUSETTS Hon. Robert B. Collings U.S. District Court for the District of Massachusetts Boston Hon. Timothy Hillman U.S. District Court for the District of Massachusetts Worcester Hon. Allan van Gestel Retired Boston

MISSISSIPPI Hon. Jerry A. Davis U.S. District Court for the Northern District of Mississippi Aberdeen

NEVADA Hon. Elizabeth Gonzalez Nevada Eighth Judicial District Court Las Vegas

NEW JERSEY Hon. Katherine Hayden U.S. District Court for the District of New Jersey Newark Hon. John Hughes Retired Trenton

NEW YORK Hon. Leonard B. Austin New York Supreme Court Mineola Hon. Carolyn E. Demarest New York Supreme Court, Commercial Division Brooklyn Hon. Helen Freedman New York State Court, Appellate Division New York Hon. Marilyn D. Go U.S. District Court for the Eastern District of New York Brooklyn Hon. Richard B. Lowe, III New York Supreme Court, New York County New York Hon. Frank Mass U.S. District Court for the Southern District of New York New York Hon. Andrew Peck U.S. District Court for the Southern District of New York New York Hon. David E. Peebles U.S. District Court for the Northern District of New York Syracuse Hon. Shira Scheindlin U.S. District Court for the Southern District of New York New York Hon. Lisa Margaret Smith U.S. District Court for the Southern District of New York New York Hon. Richard J. Sullivan U.S. District Court for the Southern District of New York New York Hon. Ira B. Warshawsky New York Supreme Court, Commercial Division Mineola NORTH CAROLINA Hon. Albert Diaz North Carolina Business Court Charlotte Hon. John R. Jolly, Jr. North Carolina Business Court Raleigh Hon. Ben F. Tennille North Carolina Business Court Greensboro

OHIO Hon. William H. Baughman, Jr. U.S. District Court for the Northern District of Ohio Cleveland Hon. John P. Bessey Franklin County Court of Common Pleas Columbus Hon. Richard A. Frye Franklin County Court of Common Pleas Columbus Hon. Thomas H. Gerken Hocking County Common Pleas Court Logan Hon. George J. Limbert U.S. District Court for the Northern District of Ohio Youngstown Hon. Michael R. Merz U.S. District Court for the Southern District of Ohio Cincinnati Hon. Kathleen McDonald O’Malley U.S. District Court for the Northern District of Ohio Cleveland

OKLAHOMA Hon. Robert Bacharach U.S. District Court for the Western District of Oklahoma Oklahoma City Hon. Robin J. Cauthron U.S. District Court for the Western District of Oklahoma Oklahoma City Hon. Stephen P. Friot U.S. District Court for the Western District of Oklahoma Oklahoma City

OREGON Hon. Dennis J. Hubel U.S. District Court for the District of Oregon Portland

PENNSYLVANIA Hon. Linda K. Caracappa U.S. District Court for the Eastern District of Pennsylvania Philadelphia Hon. Lisa Lenihan U.S. District Court for the Western District of Pennsylvania Pittsburgh Hon. Christine Ward Allegheny Court of Common Pleas Pittsburgh

TENNESSEE Hon. Diane K. Veskovo U.S. District Court for the Western District of Tennessee Memphis

TEXAS Hon. Martin Hoffman 68th District Court Dallas Hon. Martin Lowy 101st District Court Dallas Hon. Nancy S. Nowak U.S. District Court for the Western District of Texas San Antonio

WASHINGTON Hon. James P. Donohue U.S. District Court for the Western District of Washington Seattle Hon. Barbara Jacobs Rothstein U.S. District Court for the Western District of Washington Seattle Hon. Karen Strombom U.S. District Court for the Western District of Washington Seattle

WISCONSIN Hon. Aaron Goodstein U.S. District Court for the Eastern District of Wisconsin Milwaukee

Conclusion

This is just the beginning of what I predict will be exponential growth in judge endorsements. I suspect this will go viral within twelve months or so. Do not be left out on this one. Create a new more cooperative identity when it comes to discovery, especially e-discovery. As Bon Dylan said in It’s Alright, Ma (I’m Only Bleeding): “He not busy being born, is busy dying.”

So, get your white-hat on now. Learn how to play the new game of cooperative discovery today, or be branded as a bad guy tomorrow. How many rulings do you think will go your way in front of a proclamation sign-on judge who thinks you are a non-cooperator? As Dylan said in Drifter’s Escape:

“Oh, help me in my weakness,” I heard the drifter say, As they carried him from the courtroom And were taking him away. “My trip hasn’t been a pleasant one And my time it isn’t long, And I still do not know What it was that I’ve done wrong.”

Well, the judge, he cast his robe aside, A tear came to his eye, “You fail to understand,” he said, “Why must you even try?” Outside, the crowd was stirring, You could hear it from the door. Inside, the judge was stepping down, While the jury cried for more.

It is really not that hard to cooperate. Attorneys do it all of the time in areas where they know what they are doing. Pre-trial stipulations come to mind, as do evidence stipulations, not to mention mediations and other forms of ADR. But it is hard to cooperate on electronic discovery when you are not comfortable with the field and do not know what you are doing. For instance, you may not know if a particular issue or concession is important or not. When you do not know, you tend to treat everything as critical. Something is happening here, but you don’t know what it is. You are afraid of making a mistake that will cost your client. You are afraid of looking stupid. For those reasons, you object to everything your adversary wants. But in the process, your obstructionist behavior costs your client way more than any mistake could. It may even cost your client the whole case. The judge may ask you to explain, and you can’t, because you only know that something is going on, but not what it is. What do you have left then, when your reputation is gone? “The answer, my friend, is blowin’ in the wind, The answer is blowin’ in the wind.”

The path to cooperation is illuminated by competence. That is why the third phase, the Tools phase, is a Schools phase; it needs to include a comprehensive educational program. If a lawyer does not understand the e-discovery issues they are facing, then they should bring in special counsel who does. That is an ethical imperative. You have to know what is going on. When attorneys have the knowledge they need to understand the full dynamics of the issues, then, and perhaps only then, does cooperation come easily. That is why I leave you with this parting wish, that you may find the knowledge to stand upright, be strong, and cooperate. And, as the great Bob Dylan wished for us all:

May you grow up to be righteous,
may you grow up to be true.
May you always know the truth
and see the lights surrounding you.
May you always be courageous,
stand upright and be strong.
May you stay forever young.

In-House Counsel Sanctioned for Defendant’s Failure to Preserve Evidence

A recent decision in Orlando imposed sanctions against in-house counsel for failure to preserve evidence, including email and laptops. Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009). Many courts have imposed monetary sanctions against outside counsel of record for their negligence in working with their clients to preserve evidence. See eg., Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) (discussed before in Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation). But this decision goes a step further and reaches behind the curtain to impose sanctions against in-house counsel. This was not your typical in-house counsel situation either. It was not a remote in-house attorney representing a large corporation. The attorney sanctioned was the general counsel for a local governmental entity, the Seminole County Sheriff’s Department.

This District Court opinion has not been published yet, but I expect it will be soon. It is, as far as I know, the first in the country to impose a monetary sanction against an in-house counsel who was not an attorney of record and was not a named party. The amount of the sanction has not yet been determined by the District Court judge who entered the order, but it will be substantial. The plaintiff incurred costs and attorney fees in excess of $300,000 to bring and prove the sanctions motion. The case reminds me of Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. 2000) where the defendant’s CEO, also not a party, was personally sanctioned for spoliation. But that case was only a $10,000 sanction.

I am afraid to tell my friends who are in-house attorneys that the spell has been broken. They too are now at risk for sanctions, not just attorneys who make an appearance. The Swofford opinion acts like Toto and pulls aside the curtain. The desperate plea of Professor Marvel in L. Frank Baum’s Wizard of Oz has never worked: “Pay no attention to that man behind the curtain! The Great Oz has spoken!” Judges from now on may not be satisfied with the Wizard attorney of record, they may look for the “man behind the curtain,” the in-house counsel pulling all the levers. If they do, and this hidden Wizard is at fault, he may be sanctioned despite the curtain, the non-appearance in court.

Warning to In-house Counsel Everywhere

Although this may be the first opinion to sanction in-house counsel for spoliation, it certainly will not be the last. As I have said many times before, judges are fed up with e-discovery spoliation. They have had enough with attorney incompetence and lackadaisical attitudes to preservation responsibilities. If the failure to preserve is the fault of in-house counsel, the courts can and will sanction in-house counsel alone, and not also sanction outside counsel. This is what happened here. The defendants themselves were sanctioned, along with their general counsel, but their outside counsel were not sanctioned. In other circumstances, where outside counsel is involved, courts may well sanction everybody, the parties, their in-house counsel and their outside counsel too. I am reminded of the words of the Wicked Witch of the West: “I’ll get you my pretty… and your little dog too!”

The outside counsel in Swofford was a law firm selected by the Sheriff Department’s insurance company to represent the Sheriff and his deputies in this negligence claim. This same law firm represents the Sheriff in all claims. But they were not formally retained for this particular claim until after suit was filed, many months after preservation letters had been sent and a duty to preserve was clearly triggered. In-house counsel did not consult with these attorneys upon receiving the preservation demands. He acted on his own. Well, if you want to call it that. As the opinion explains, his actions were woefully inadequate.

After hearing testimony on these issues, District Court Judge Mary S. Scriven decided that the only attorney who should be sanctioned for the destruction of evidence was the defendant’s in-house counsel. He had been the general counsel for the Sheriff’s Department since 2006. He had not appeared of record in the case. He remained behind the curtain. But he did attend the spoliation hearing and Judge Mary Scriven on her own decided to ask him questions about what happened.

In-house counsel went on the stand and was sworn in. His testimony established that he alone responded to the preservation letters and outside counsel was not involved. His testimony, along with that of the other witnesses, showed that the spoliation occurred before suit was filed and before outside counsel was formally retained for this particular claim. Judge Scriven held that because in-house counsel was in charge of preservation, not outside counsel, that he should be the only attorney sanctioned.

If It Can Happen in Orlando, It Can Happen Anywhere

If it can happen to the general counsel of a defendant sued Orlando, it can happen to a general counsel sued in any court in the country. Orlando, much like Kansas, is a very friendly place. When you walk downtown perfect strangers will smile at you and some will even say hello. Incredibly, it is not the start of a con-game or panhandle routine. People are just friendly. As Dorothy in the Wizard of Oz often chanted, “there’s no place like home.”

Although we are not exactly the Emerald City, the greater Orlando area is now a Million people strong and yet has somehow maintained a tradition of open hospitality. It is not too surprising when you consider that our largest employer is Disney World, where everybody is paid to smile and convinced they are party of a reality TV show. Yes, Florida has technology companies and the Space Coast, but we are still primarily a tourism-based economy. As a native Floridian I can tell you that we are all trained from childhood to be nice to tourists and give good directions. We know not to bite the hand that pumps money into our economy.

Our judges grew up in the same atmosphere and our court rooms also tend to be friendly, tolerant places. Over the years I have seen judges put up with blunders by attorneys that you would not believe. So when a Orlando, Florida judge decides to reach in within a company to sanction in-house counsel for e-discovery blunders, it is a big deal. It means there is a sea-change happening throughout the country. Judges have had it with all of the preservation mistakes, the incompetence, and lack of diligence. After years of tolerating mistakes, they are now ready to sanction the attorneys of record who appear before them AND the attorneys behind the scenes.

The message is clear. If it can happen in my home-town of Orlando, it can happen anywhere. In-house counsel should beware. They are not safe behind the curtain of non-appearance. They too are exposed to sanctions, just like their counsel of record, if they are not diligent in the responsibilities they assume. They must take preservation obligations very seriously. If they do not, like the obviously clueless general counsel in this case, they can and will be sanctioned. Mind you, the screw-ups will have to be pretty bad for this to happen, at least in Orlando, but no one wants to find out where the sanctions line will be drawn. All the courts want, no demand, is reasonable diligence in preserving evidence, not perfection. They are entitled to that. So are the clients.

How “Lucky Swofford” Came to Sue the Sheriff

The underlying facts of Swofford v. Eslinger are really very interesting. The plaintiff, Robert Swofford (shown right), is quite a lucky guy; well, in a strange way. Swofford is a retired Army Captain. He settled down in a rural part of Florida, Seminole County, just north of Orlando. Then he got really lucky. He won the Florida Lottery! Got over Sixty Million Dollars! Of course, he was then sued by his two ex-wives, who are sisters. They wanted some of the money, but eventually he prevailed. He stayed in his home in Seminole County, even though everybody now knew Swofford as the lotto winner.

One night, quite late, the lucky lotto winner heard some noises in his backyard. It sounded like there were intruders. So ex-Army Swofford went out to investigate with a loaded gun in his hand. Here is where Swofford’s luck nearly ran out. It turns out that the intruders in his backyard were two Sheriff deputies and a police dog in hot pursuit of a burglary suspect. They had been chasing this guy all over and had just hopped the fence into Swofford’s yard to follow him. That is where the deputies ran into lucky Swofford, gun drawn, protecting his home and his millions.

At this point, the story of what happened diverges dramatically between Swofford and the deputies. The police claim that they identified themselves and told Swofford to drop his gun. Swofford says they just opened fire. It is undisputed that Swofford was shot seven times, and the police, not at all. I say Swofford should still be called lucky because he somehow survived being shot seven times. With his life and Sixty Million in tact, lucky Swofford sued the Sheriff and his deputies, claiming negligence and demanding more millions.

Lucky Swofford’s Lawyer Demands That Evidence Be Preserved

Swofford’s attorney, whom I know pretty well, is a good trial lawyer, but does not really know e-discovery. Still, he knows enough to write a pre-suit preservation demand letter to the Sheriff’s Department, asking that they preserve all evidence related to the shooting. Email and other computer stuff were not specified in that first letter. But he wrote a second preservation demand letter a few months later, again before filing suit, that was slightly more specific. The second letter requested preservation of related “firearms, clips and ammunition, training records, and electronic evidence.” Yes. The “e-word” – electronic – was mentioned. And a good thing too, for this made it hard for the Sheriff to later argue – which he did anyway, but, it was harder and did not work – that he did not know this applied to e-mail. Swofford’s lawyer also made several pre-suit public records requests asking for particular information, including all e-mail communications related to the shooting investigation. He did not get any of course; either pre-suit under the public records requests, or during suit under a request for production. To understand why, we have to understand exactly what the general counsel did in response to the preservation demand letters.

In-house counsel received the pre-suit letters from Swofford’s lawyer and gave them to his paralegal. She then actually read the demands and responded by sending copies of the letters to the Sheriff himself, Donald Eslinger (shown right), and five senior employees. The Sheriff and his senior staff then responded to the letters by doing nothing, nada. Even though one of these senior execs was the father of one of the two dupities who shot Swofford, he claims he did not tell his son, or anyone else, about the preservation demands.

The five senior employees copied with the letters did not include the deputies who actually shot lucky Swofford seven times. The two deputies later testified that they did not know anything about the letters or even about evidence preservation. They claimed to have no idea they were doing anything wrong when they later deleted all emails and asked for new laptops, which of course resulted in the destruction of all ESI on their old laptops. Same story regarding their request for new guns, new police radios, uniforms, etc. This was all just normal, routine recycling according to their testimony. It was all done in blissful ignorance of any preservation demand letters or so-called duty to preserve evidence of the shooting of the famous lucky-lotto guy. The deputies testified that no one ever told them to do anything.

The in-house general counsel admitted that all he did in response to the preservation letters was forward the notice to key officers. He considered that sufficient. He made no follow-up efforts whatsoever to be sure the evidence was preserved. He did not talk to them about it or talk to the IT people. No one else did anything either. As a consequence, most of the evidence that Swofford wanted preserved was destroyed.

All the emails were lost at least, along with the deputies’ laptops. But one piece of ESI evidence survived. It turns out the instant messages for the Sheriff’s Department were kept on a server different from the email server and it was not wiped. Also, it turns out that at least one instant message was produced to lucky Swofford in the lawsuit. The instant message uncovered was from another police officer in a nearby municipality to one of the deputies who shot Swofford. The message referred to the deputy as the “Lotto Killa.” That later proved to be an exaggeration as somehow lucky Swofford survived the shooting, but at the time of the “incident” and sending these IMs, that was still very much in doubt. The lotto winner, had, after all, just been shot seven times and lay near death in the local hospital.

The Seminole County Sheriff deputy replied to this IM by messaging back: “I need to go to the sign shop and have them put that name on the side of the car.” Very funny indeed. Lucky that Swofford found this one bit of evidence. It gave him strong grounds to argue that the destroyed emails would have been detrimental to the Sheriff. Everyone knows it was probably filled with such tidbits of sick humor. Just how sick and how many we will never know.

Judge Scriven’s Opinion

When lucky Swofford’s lawyer began to suspect that key evidence had been destroyed after he sent his letters, he began a $300,000 effort to have sanctions entered against the defendants. This effort ended in a lengthy evidentiary hearing before Judge Scriven. Although new to the bench as a District Court Judge, Mary S. Scriven has many years of prior experience as a United States Magistrate Judge as was quite familiar with these issues.

Judge Scriven starts her opinion by an expression of her obvious frustration with the defendants in this case:  “That we are here on this issue is inexplicable and inexcusable.” It is kind of like flying monkeys.

Judge Scriven did not take well to in-house counsel’s mea culpas and profession just he was just acting in ignorance, not bad faith. The in-house attorney testified that he thought it was sufficient to just send copies of the preservation letters to the senior employees. It is interesting to note that Swofford’s lawyer did not call upon the in-house attorney to testify. He rested his case without ever calling him. The defense did not call him either. Judge Scriven on her own initiative made him a witness and asked him questions at the end of the hearing. After the judge asked her questions, none of the attorneys asked him anything on cross. Frankly, his answers were so dumbfounding, there was little left for anyone to say.

Judge Scriven asked the in-house counsel questions so that she could evaluate the merits of the spoliation defense and his role in it. Defendants were arguing that the destruction was mere negligence, not bad faith, so sanctions were not appropriate. At pages 8-9 of the opinion Judge Scriven’s responds to the defense in general and to in-house counsel’s testimony:

SCSO’s in-house counsel, Lane, failed to ensure that evidence be preserved. “It is not sufficient to notify employees of a litigation hold and expect that the [employee] will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved].” Zubulake, 229 F.R.D. at 432. Nothing of the sort was done in this case. In fact, Lane professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client’s obligations were in this regard, and, not surprisingly, nothing was done in this regard. But Lane is clearly not the only individual at fault for the spoliation. The senior SCSO officials who received the letters, including the Sheriff himself, completely disregarded the letters and their resultant legal obligations.

Judge Scriven, like every other federal judge I have seen, here endorses what I call the Zubulake Duty – the duty of counsel to take reasonable steps and efforts to preserve evidence. In Zubulake Judge Scheindlin imposed this duty on the outside defense counsel. In Swofford, Judge Scriven imposes this same duty on in-house counsel. This is as it should be. Everyone knows that they have a duty not to destroy evidence, especially lawyers, even if they have never actually read the rules.

Moreover, lawyers representing private or public entities, both in-side and outside, have a duty to advise their clients and help them to preserve evidence. As this case shows, there are often circumstances where the preservation efforts are controlled by the in-house counsel, not the outside counsel of record. Under these circumstances, where outside counsel has done no wrong, the blame properly falls on the lawyer who was asleep at the wheel, the in-house lawyer, and not just on the parties themselves, here the Sheriff and the accused deputies.

Unlike the defendant Sheriff, who admitted to receiving the preservation letters, the two deputies defendants who actually destroyed the evidence denied any notice of the preservation letters. No one every told them. They claimed not to know they should preserve their emails, computers, guns, etc. They thus argued that the sanctions requested of an adverse inference instruction and monetary awards should not be entered, or if entered, should not be against them. Judge Scriven did not accept this defense holding at pages 6 and 14:

However, as the Court explained in Turner v. Hudson Transit Lines, Inc.,

[i]t is no defense to suggest, as the defendant[s] attempt[], that employees were not on notice. To hold otherwise would permit an agency, corporate officer, or legal department to shield itself from discovery obligations by keeping its employees ignorant. The obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate those obligations to employees in possession of discoverable materials.

142 F.R.D. 68, 73 (S.D.N.Y. 1991)(citation omitted).

Further, the Court questions the veracity of Defendants’ testimony in this case. Both suggested as law enforcement officers and as potential defendants that they were not aware of the need to preserve relevant evidence. The Court finds this testimony lacks credibility.

In view of the circumstances of this case, Judge Scriven had no trouble determining that the loss of evidence here constituted bad faith.

In light of both Defendants’ blatant disregard of their obligation to preserve electronic information and Remus’s “Lotto killa” conversation over instant message, the Court can surmise that emails deleted by Morris and Remus, and perhaps other SCSO officers, contained content detrimental to Defendants’ case. Accordingly, the Court finds that an adverse inference should be imposed against all Defendants for the destruction of emails from April 20, 2006 to April 2007. The jury shall be instructed that it may infer that emails deleted from April 20, 2006, to April 30, 2007, contained information detrimental to all Defendants in this case.

Id. at pg. 17.

Judge Scriven then considered the issue of imposition of monetary sanctions. At this point she made history by not only sanctioning the defendants, but also the defendants’ in-house counsel:

The Court finds appropriate the imposition of fees and costs against Mr. Lane in light of his complete failure to fulfill his duty, both in his official capacity as General Counsel for the SCSO and as initial counsel for all Defendants in this case, to take affirmative steps to monitor compliance so that all relevant, discoverable information is identified, retained and produced.⁸ In re: Seroqual Products Liability Litigation, 244 F.R.D. 650, 663 (M.D. Fla. 2007)(citing Zubulake, 229 F.R.D. at 432). Therefore, the award of fees and costs⁹ will be imposed jointly and severally against each of the three Defendants and Mr. Lane, each in his official capacity.¹⁰

8 The Court imposes sanctions against Mr. Lane pursuant to both the Court’s inherent authority and 28 U.S.C. §1927. See Amlong & Amlong, P.A., 500 F.3d at 1239.

9 The amount of fees and costs awarded will be determined by separate order.

10 The Court does not impose fees and costs against outside counsel because there is no evidence to establish that any outside counsel contributed to or failed to prevent the spoliation of evidence at issue in the Motion.

Id. at pg. 22.

It is interesting to note that Swofford had also asked the court to specifically “impose the burden of paying fees and costs on the Defendants themselves and [to] forbid them from passing that expense through their insurer.” Judge Scriven declined to do so, but only because she considered “issues concerning Defendants’ insurance coverage for matters arising out of this litigation are outside the purview of this Court.” Id. at pg. 23. In any event, it will be interesting to see if insurance companies will cover bad faith spoliation. They may look for grounds in the policy and law to decline.

Sanctions Against In-House Attorneys

Judge Scriven in Swofford entered two sanctions: an adverse inference instruction against the defendants on the spoliated evidence; and, a monetary sanction, a fee and cost award in an amount to be determined, against the defendants and the in-house attorney. The adverse inference sanction under Eleventh Circuit law required a finding of bad faith, which Judge Scriven easily found in these circumstances. Not all Circuits require bad faith as precondition for an adverse inference. In some, negligence will suffice. Even in the Eleventh Circuit, a finding of bad faith is not necessary to impose the lesser spoliation sanction of taxation of attorney fees and costs against a party or their legal counsel of record. Usually mere negligence or rule violation alone is sufficient for such a fee award sanction.

A finding of bad faith is also probably not necessary to look behind the curtain and impose a fee sanction against an in-house counsel who has not appeared of record. But this question is left unanswered for now, since bad faith was shown and the issue was not commented upon in Swofford. Future cases will address this issue I am sure, and perhaps also the other issues left unanswered by Swofford: should in-house be personally liable to pay the sanction or should the insurer or corporation pay. I suspect that future cases will also answer the question of the court’s jurisdiction to impose sanctions against an in-house attorney who is not a named party to the case and has not filed an appearance.

In the meantime, one thing is clear. All attorneys, both outside counsel and in-house counsel, must act with diligence in the preservation of evidence, especially electronic evidence. As judge Scheindlin said, counsel are required

to make certain that all potentially relevant information are identified and placed on hold. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the ‘key players’ in the litigation, in order to understand how they stored information.

Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004). Judge Scriven has now clarified that “counsel”not only means the outside counsel, but also in-house counsel. This is not a scrivener’s error. This is a legal imperative and an ethical imperative. ABA Model Rule 1.3 states:

Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

Diligence in the preservation of evidence is a core obligation of all attorneys involved in litigation, both in-house and outside counsel. If in-house counsel assumes responsibility for the task, rather than outside counsel, and fails to do it properly, then Swofford shows that they can and will be held accountable.

Conclusion

In Swofford in-house counsel was sanctioned, not outside counsel, because the spoliation occurred before outside counsel was retained and consulted. It was clear who was to blame largely because of the time factor involved. But other scenarios are also possible and will I predict come up in future legal opinions. The duty to preserve may be triggered upon filing of the suit and retention of counsel or otherwise be a duty that runs to both in-house and outside counsel. What happens in that common situation when in-house counsel takes sole responsibility for preservation, and tells outside counsel that they will handle it? What if outside counsel is expressly instructed not to spend time or incur fees “to make certain that all potentially relevant information are identified and placed on hold” because these obligations are being handled in-house? What if outside counsel is not allowed by in-house counsel to speak with information technology personnel? What if they are not allowed to speak with key players regarding how they store information? What should outside counsel do when receiving such instructions? May the attorneys of record in the case safely rely on their client to fulfill the Zubulake duties?

These are critical questions now facing our profession. Like most critical questions they are ethical in nature. They not only test the application of our duty of diligence, but also our duties of competence (ABA Model Rule 1.1), candor toward the tribunal (ABA Model Rule 3.3), and, fairness to the opposing party and counsel (ABA Model Rule 4-3.4).

Although we may still be a long way from home, and there are obviously many struggles left to resolve these questions, I think that Swofford helps us along. Clients should, if they wish, be able to handle evidence preservation on their own, especially if they have their own in-house legal counsel. If they have another attorney advising them, then they should be able to instruct their outside counsel to let them do it, to let the in-house counsel “make certain that all potentially relevant information are identified and placed on hold.” Outside counsel should be able to rely on that, and not face sanctions if it turns out that the in-house botches the job. Outside counsel should not be required to indemnify the work of in-house lawyers or their clients.

If a court decides that sanctions are appropriate, then the sanctions should run against the in-house counsel that made the mistake. It should not also run against the outside counsel who relied on in-house counsel and followed the client’s instructions. Of course, there may be exceptions to that in extreme facts, such as when it is obvious to outside counsel, or should be, that mistakes are being made or fraud is occurring by in-house counsel. The outside counsel then has a duty to protect their client by pointing out the mistakes or trying to stop the fraud. Failing that, as the Qualcomm case shows, outside counsel may have no choice but to fire the client and withdraw or face severe sanctions themselves.

The question is different for situations where the client does not have in-house counsel or other attorneys to advise them. The Zubulake duty is a legal duty that requires an attorney to fulfill or at least supervise, preferably one who has actually read the rules.

If a party to litigation, one who does have any attorney other than you, in effect tells you to but-out, we will not pay for that, we will handle it ourselves, then you have a serious problem. I doubt that you can just say yes to that kind of client reaction and turn your back on what they do or do not do. In the context of litigation, I doubt that courts will tolerate such laissez faire delegation by the attorneys of record. Courts will insist that our system of justice be protected by some kind of lawyer supervision of the client’s preservation efforts. If a client refuses reasonable supervision, or hides their hold efforts, then you proceed as their attorney at your own risk. In other words, if a client in litigation, or contemplating litigation, refuses all attorney involvement concerning litigation holds, then if spoliation occurs a sanction against the attorney of record is probably fair.

The client’s refusal to cooperate or disclose litigation hold efforts is a big red flag. In many circumstances it may prompt a motion to withdraw by defense counsel if an appearance has already been made. For plaintiff’s counsel, it should prompt a declination to file the case to begin with. The plaintiff’s duty to preserve and initiate a proper litigation hold will always begin before the suit is filed. If counsel for a would-be plaintiff has an uncooperative client who will not receive preservation help, they should decline the representation. If they proceed anyway, they are fair game for personal sanctions, especially if they never even tried to counsel the client. If an attorney for a would-be plaintiff sees evidence that the plaintiff has already fraudulently destroyed or hidden evidence in anticipation of litigation, they must decline representation. They should never proceed anyway and hide the fraud. To knowingly continue would be to join in a fraud of the court.

Our way forward is clear. An attorney must be minding the store and following the wise dictates of Judge Scheindlin, Judge Scriven, and many others, to “take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved].” As the Munchkins said: Just follow the Yellow Brick Road. Exactly what affirmative steps are reasonable in any particular case depends upon the facts, but we have a guiding principle, a Yellow Brick Road. There needs to be an attorney who monitors compliance. Who employs that attorney is not the critical question. Inside or outside counsel, we are all on the road together.

The Non-Cooperation Proclamation

Guest Blog by Bill E. Boie,  a Real Litigator from a law firm near you.

I want to thank Ralph Losey for the opportunity to respond to the tidal wave of good-intentioned drivel that appears week after week on this blog. Its been going on for two years now. I just can’t take it anymore. All this stuff keeps coming about technology, more technology, sanctions and ethical duties. It gives me the creeps. I hate someone pretending they know stuff I don’t. And the worst nonsense is the so-called Sedona Cooperation Proclamation. I’m a lawyer, and I have been litigating and fighting my way around the courthouse for more years than I’d like to remember. I know one thing for sure: conflict is what counts. Real litigators get want they want. Phooey on cooperation!

I’m writing because someone has to stand up for the everyday lawyer. As one sage politician once said, “Average people need an average Justice to represent them on the Supreme Court.” I’m here to tell the truth. I’m not a good writer like this Losey fellow or the Sedona editors, but me and my friends have put together a few ESI principles for real litigators who thrive on conflict so that no one is misled by the soft ESI cooperation types appearing on this blog. There is real opportunity for litigation conflict in ESI. Seize the moment! So here is the:

The Real Litigator’s ESI Manifesto

Most people misunderstand the importance of perpetual conflict in litigation. Everywhere one hears the dumb, siren call for “dialogue” and “cooperation.”  But real litigators know that rumors of the death of conflict are greatly exaggerated. Conflict is as strong and healthy as ever. More importantly, with the boon of so-called “ESI,” conflicts are exponentially multiplying. Now more than ever, huge pre-trial collateral conflicts are erupting. This makes any real litigator smile. Cases are being decided without ever getting to the merits. Tell your clients you’ll win it for ‘em before the courthouse door even opens. The good ESI news is that soon all that will count is who wins the discovery conflicts.

There are great social benefits to this ESI “conflict-gone-wild.”  Why go to trial when a case can be decided earlier on a discovery dispute?  Trials just delay things, and are messy. Just think: your client might be wrong on the merits, but you can still win the case in discovery, while continuing conflicts over fees and costs.

Nurturing conflict is not easy. If the opposition proposes anything, take the opposite position without bothering to think about it. What is good for them must be bad for you. Litigation is not supposed to be a rose garden. Electronically stored information has changed nothing about what litigators really do. Conflict requires real “mano-y-mano” struggle. The ESI pin-heads want to turn litigation over to the IT nerds. Real litigators don’t need computer forensics. Paper is solid and real. Real litigators need paper to crumple and throw during depositions and to confuse juries. Besides, whoever has had a close encounter with an “ESI”? You can’t even see the stuff without a computer.

Cooperation in Discovery is Fool’s Gold

ESI conflicts should be encouraged for the social good. No self-respecting litigator cooperates with the opposition without seeking an advantage. Make it a maxim of your practice to never let any good faith act of cooperation go unpunished. Make everything about ESI adversarial. How can you cooperate with an enemy?  Pretend to cooperate if you must, but only to trick the opposition. Lying in wait is an age old proven tactic.

The key to promoting conflict is to be sure to never address an ESI issue early in the case. The stakes are not high enough early on. Keep in mind that great conflicts produce great social goods. Think of the benefits of war. Never take a chance on discussing ESI. You might resolve an ESI issue and thus prevent a huge conflict down the road.

The cost of ESI is the new secret sauce of litigation. Run up costs!  See if the other side wants to spend millions while not getting an inch closer to the truth. They’ll probably back down and you win! Don’t hesitate wasting your clients money if it drives the other side to say “Uncle.” Spare no waste in the pursuit of conflicts!  If they don’t quit, then that’s all for the better. An ESI minefield will now be buried in the litigation battlefield. Remember what the great generals have said, “March to the sound of the cannon!”

Create conflict wherever you can. Remember that only from conflict does the winner emerge. Make that you! If winning doesn’t count, why keep score?  Make sure the other side is sanctioned more than you.

“Cooperative Discovery” is a Trick by Big Daddy Judges

All this soft ESI talk about cozying up to the other side is nothing but a shot-gun wedding enforced by the courts. You don’t like the opposition, and the opposition doesn’t like you. Why get married? Besides most marriages fail anyhow.

Your duty as a litigator is to stand up in court for your rights and your client’s rights: your right to be paid and your client’s right to pay you. Don’t let tough talking judges scare your clients. Keep clients in the dark. By the time the lights come on, the case will have settled favorably. If not, you can always have a real good conflict with the client over whose fault it is.

A key approach to creating ESI conflicts is lack of preparation. What you don’t know can’t hurt you. You can’t cooperate if you have nothing to cooperate about!

The Real Lawyer’s Seven ESI Principles

The continued explosion of ESI conflicts can be assured with just seven fundamental principles:

1. Make sure you never discuss ESI with your clients. Make objections to discovery requests without wasting your client’s time. Use the “oldie but goodie” boilerplate objections that have worked for years. Just use the same form from 20 years ago. Somebody smart probably wrote it whenever. Make these objections without ever talking to your client. There is plenty of time to talk later, and if ESI is lost, you’ll be doing everyone a favor because the cost of production will be reduced. If you talk to your client, you may learn something about the case. This is very dangerous. Conflict thrives best when no one knows what they are talking about.

2. Make sure data sources are kept secret. Do not do any work for the opposition. The work product doctrine has been blessed by the Supreme Court. Make sure it takes months, if not years of depositions and motion practice for the other side to learn anything about your client’s data locations and computer network. Remember, conflicts will never get resolved with everyone stumbling around in the dark. As a great German philosopher  once said, “All cows are black at night.”

3. Never discuss search terms. Would you give a robber the keys to your house?  No! You shoot the robber in the doorway. Make the other side guess at search terms. Don’t help them. And if they happen to make a misspelling of a name or key term, don’t correct it. It will be a real joke on them when the search turns up nothing! Who cares if it is your data that you know about. If they want to play the key word guessing game, shame on them. Let them eat bytes of cake. On the other hand, be sure to propose hundreds of search terms to the opposition. Remember, what is good for the goose is never good for the gander! Don’t let your neck get rung. Insist they search back-up tapes. Demand the preservation of all ephemeral data. The smoking gun is there somewhere. That’s why they have ESI: to search it endlessly. When the opposition’s good faith is finally exhausted accuse them of hiding the ball and being “non-cooperative.” This will cause an endless stream of sniping over search terms.

4. Play tricks with production. Surprise the opposition by having a semi-trailer truck show up at their lawyer’s offices. Off load on to the sidewalk all the ESI printed on to paper. When you leave, quickly call the code enforcers so the opposition will get a citation for blocking the sidewalk with hundred of heavy boxes loaded with paper they can’t search. Be sure not to let the opposition ever enjoy any of the benefits of ESI.

5. Make sure neither you, nor your client, has any idea of the ESI budget. If you don’t know the budget, then you won’t have to tell the client. And if the client doesn’t know, then the client won’t have to budget either. Everyone will be happy. When the Titanic costs come in, blame it on the other side. The client will get mad as hell and tell you not to take it from the other side, to fight back and yes, to create more conflict. Never let the circle be broken.

6. Avoid mediators and ESI special masters. They are the death of conflicts. Never let one of these aliens get near your case or client. These whining, do-good mediators and special masters are traitors to the social good of conflict. Real litigators would rather fight than talk. How can the profession ever prosper financially if cases worth millions in fees are settled?

7. Avoid learning anything about computers. Ignorance is bliss. Don’t ruin it. Work hard to appear stupid and to keep the bar as low as possible.

The Road to Munich

All this ESI co-operation talk is idealistic. You remember the results of Chamberlain’s appeasement strategy. Forget cooperation. Never willingly show the opposition your weapons or give them a moment to rearm. Surprise and stealth is always the best approach.

We speak English for a reason. Language is ambiguous. Never miss an opportunity to interpret a document request in a manner that borders on lunacy. The public thinks we’re crazy anyhow. Just make sure all your objections are collections of polysyllabic Latinate words, such as, not “cal-cu-la-ted.”  No one will know what you mean, and you will sound smart.

“Stay the Course” is the motto of The Real Litigator’s ESI Manifesto. These are exciting, historic times. ESI can create a multitude of seemingly irresolvable conflicts if you follow The Real Litigator’s ESI Manifesto. The entire judicial process can be brought to a halt!

The Real Litigator’s ESI Plan is Simple

Part I. Stay stupid. The more you know, the more likely you might start talking. Knowledge is impotence. Keep telling the courts and other attorneys that nothing has changed. Make sure no one talks the same language. Take to heart the expression, “It’s Greek to me.”

Part II. Confine litigation to the club of lawyers who don’t want to learn anything new. Keep up the Real Litigator’s ESI honor code of “Don’t Ask, Don’t Tell.” Indoctrinate new attorneys into the old tried and true ways. Make secret promises with the opposition not to exchange ESI; then break the promise when your case goes bad! Don’t feel bad about breaking your promise; everyone knows conflict is a social good. The opposition will feel tricked and want to get even, and this will create more conflict. Don’t lose control of your right to generate and perpetuate conflict. The ESI cooperation barbarians are at the gates. Let them eat hash!

Part III. Keep ESI tools out of litigation. Without ESI culling and filtering tools, the truth will never emerge! We can then argue forever about nothing. The silver tongue is our only tool. If it was good enough for Socrates, why do we need anything else?   More importantly, without an army of associates looking through the mountains of paper printed from ESI, our firms would wither and atrophy.

Conclusion

The ESI-huggers are a dangerous, unstructured bunch. Cooperation is the death of honorable mortal combat. We must not lose our grip on the civil procedure rules. Anachronism is good. The fact that the rules were designed for a paper world is perfect for conflict creation. We all know reform is for the Tiny Tims of the world. Real litigators know all goes well when everything is in conflict. Indeed, conflict about conflict is even better. Conflict should go forth and multiply as if in a hall of mirrors. Indeed, the mirrored palace at Versailles was good enough for Louis XVI!  Who are we to complain about too much conflict—at least until we too lose our heads.

[The author Bill E. Boie, a/k/a William Hamilton, would like to thank Ralph Losey for his good humor and the e-discovery class at the University of Florida Levin College of Law, taught by Ralph Losey and the author, for the class' inspiration and the suggestions for this tongue-in-check contribution to the e-discovery dialogue.]