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.]
Posted by Ralph Losey 
The way the game is now often played, the requesting party also keeps their secrets. They do not want to reveal exactly what it is that they are looking for. But this is, I contend, not as it should be. The requesting player is misusing the paper-world work product doctrine to hide their true discovery intentions. They accomplish this by using broad, general requests. That keeps secret what they really want. They claim a work product right to do so to protect their mental impressions and case strategy. Then they go after what they really want by playing the key word guessing game, both before and after the production. Not all requesters play this way on purpose. This explanation assumes that they have done their home work. It assumes that they know what the issues are and what evidence they need to prove the issues. It assumes that they know what they want, which, for some practitioners, is not always true. Some practitioners have no idea what the real issues are and what they are looking for.
This new game can only work if the search is controlled by the responding party. It is, after all, their data, their IT systems, their data custodians, their employees, their agents, their attorneys, their language, their retention policies, their retention practices, etc. The responding party is not blind like the requesting party. They are in a far better position to design the culling and search strategies, including key words. They are in a far better position to find the information that the requesting party wants. They will know how to find all of the number 2 cards, assuming they have any. The responding party may still find nothing and say Go Fish. But the process will be much faster and less expensive than iterative 
Indeed, although the responding party can see-all and thus must lead the search, the requesting party should always still play a key role. First of all, they have to fully describe what their Waldo looks like. In discovery each issue has its own Waldo and its own ideal search methodology to find him. There are recurrent patterns, especially where the responding party has gone through the drill many times. Yet there is rarely a one-size-fits-all search strategy, any more than there is a one-size-fits-all legal strategy.
