I came across a case recently where a defendant successfully employed an “Aikido-like” maneuver to prevail in an e-discovery fight. Perfect Barrier, LLC v. Woodsmart Solutions, Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008). Plaintiff’s counsel took an over aggressive approach to e-discovery which defense counsel completely turned around on him. Plaintiff’s counsel ended up losing a motion for sanctions and driving up his client’s e-discovery costs. This case demonstrates the essence of Aikido in action, and the dangers of trying to misuse e-discovery as a weapon. It has many other interesting points to it as well, including an argument over native production using hash values, versus flat TIFF file production using Bates stamps. This debate is at the core of my law review article, HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007), and the practitioners here cite to the article as part of their arguments.
But first, a little about Aikido. It is a purely defensive martial art that redirects the force of the attacker back upon himself, instead of opposing it directly. The usual result is the attacker being thrown to the ground as shown in the photo above. For an amazing demonstration of Aikido by Steven Seagal, see this YouTube video, where he is first attacked by one black belt, then two, three, and then a whole “class action. ” They all end up on the ground, with Seagal barely breaking a sweat. Many consider Aikido the purest and most elegant of all martial arts, and one of the most difficult to master. It is considered a “non-violent martial art” (an oxymoron, I know, much like “cooperative litigation”), whose primary message is peace and reconciliation. It is only used for defense, to thwart attacks, never for offense. It works by channeling the force of the attacker, not resisting or opposing it. As the well known founder of Aikido, Morihei Ueshiba, explained:
Nonresistance is one of the principles of aikido. Because there is no resistance, you have won before even starting. People whose minds are evil or who enjoy fighting are defeated without a fight.
These are sage words, but hard to imagine how they apply to litigation and e-discovery. That is where the Perfect Barrier case comes in. Perfect Barrier, LLC v. Woodsmart Solutions, Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008). This is a relatively small dollar value case against Woodsmart Solutions, a maker of blue coated lumber.
Plaintiff begins discovery with a direct attack, making an obviously over broad request for production of emails. The request included a list of seventy-seven so called “relevant search terms” that Plaintiff’s counsel created on their own. The list included the defendant’s name, “woodsmart,” and several other common words. At this point, most would actively resist the over-broad request. They would rise to the fight with either a motion for protective order, or perhaps their own counter-offensive request for emails using a keyword list that was just as broad. But that is not the Aikido way. Nor is it the way of defense counsel in this case, Stefan Stein, whom I do not know, but who, according to my research, is certainly not a martial artist, and may never even have heard of Aikido. He is, however, a very experienced intellectual property lawyer and obviously wise in the ways of litigation.
Defendant’s attorney responded to this attack, not by resisting it, but by pointing out the obvious, that the list of keywords was so broad that it would catch virtually every email on Defendant’s server. He offered to compromise and negotiate a new list of keywords and other search protocols with Plaintiff’s counsel, a list and procedures that would be more effective to the supposed common goal of ferreting out relevant emails. Preferring to fight, Plaintiff’s attorneys did not respond to the peace overture. They refused all negotiation, and instead insisted that Defendant carry out the search with the list they had written. Plaintiff did not care that the search terms would produce too many emails because they assumed that the burden of review, to screen for confidential and unresponsive ESI, would fall on the Defendant, the producing party. They saw this as a potential knock out punch, that might force Defendant to surrender on their terms, instead of incurring the tremendous review expense. By all appearances, they were misusing e-discovery as a weapon.
Defense counsel at this point did not resist, they agreed, reluctantly, to the search terms, but then added a small little twist, that the parties would make the production under a confidentiality order. Of course, this is standard in most business litigation, and so Plaintiff quickly agreed, sensing what they thought was weakness and capitulation on Defendant’s part. Little did they know that their hands had just been grabbed, much like Seagal did to his attackers in the video. Plaintiff’s attorneys under estimated their adversary, and just like the many Steven Seagal attackers, they would soon find themselves thrown for a loop.
The parties then entered into a confidentiality agreement, which became a stipulated discovery order. Too bad Plaintiff’s counsel did not read the stipulated discovery order more carefully. He was obviously too busy with the attack to read the fine print. Defendant then ran the search terms as agreed, and made production to Plaintiff’s counsel of all email containing these terms. The production was made in native format on DVD, and not too surprisingly, there were 75,000 pages of email in this small case. However, what was surprising was the confidentiality designation notice that accompanied the production. The notice designated all of the email produced as falling within the highest category of confidentiality, the so called “Attorneys Eyes Only” confidentiality. Under the stipulated order this meant that only Plaintiff’s counsel could look at these emails, and they could not show any of them to their client, or their expert, or anyone. They could not even use them in court, unless and until they first went through the procedures of the agreement to challenge the confidentiality designations.
This little twist by Defense counsel effectively threw Plaintiff to the ground. It shifted the enormous burden of review of these 75,000 emails from the responding party, here the Defendant, to the requesting party, here the Plaintiff. This is, in my view, a perfect legal example of the Aikido philosophy of defense by redirecting the attacker’s force upon himself.
In the words of Ueshiba, who liked to call Aikido the “Art of Peace:”
In the Art of Peace we never attack. An attack is proof that one is out of control. Never run away from any kind of challenge, but do not try to suppress or control an opponent unnaturally. Let attackers come any way they like and then blend with them. Never chase after opponents. Redirect each attack and get firmly behind it.
To see Ueshiba himself as an elder practicing Aikido, see this YouTube video. It looks fake, but it’s really not. These are young black belts trying their hardest to knock down an old man. By the way, I am not an Aikido practitioner. I have never even tried it. I am just an admirer of its philosophy and techniques. Still, I have studied and practiced other martial arts and earned a brown belt in one of them.
Back to Perfect Barrier, Plaintiff’s counsel responds to the designation of all 75,000 emails as “Attorney Eyes Only,” with a motion for sanctions. It reminds me of the attackers in the Seagal and Ueshiba videos who get up after a throw down and try again to attack. Plaintiff’s counsel argued quite truthfully in the motion that it was never his intention to allow Defendant to designate all emails as “Attorneys Eyes Only,” but only ones that qualified for that designation by virtue of the super confidential nature of the communication or attached document. Plaintiff claimed that all of these emails certainly did not qualify for that classification, and so Defendant violated the stipulated order and should now be sanctioned. This was a pretty credible attack, by a black belt of an attorney, upon a seemingly weak and vulnerable adversary. Here is a copy of Plaintiff’s Memorandum supporting the sanctions motion. It has several interesting exhibits attached to it concerning hash that I will discuss later.
Defendant’ Opposition Memorandum pointed out that nothing in the parties agreement prevented them from designating all email as “Attorneys Eyes Only” and argued that shifting the burden and costs of review here onto the requesting party was justified and permitted under the rules and case law. Here is the primary thrust of their argument:
Because Plaintiff is alone responsible for the impossibly large volume of documents recovered, it should bear the burden of having to review the documents for relevance. . . .
Requiring WoodSmart to review all 75,000 pages of emails for confidentiality would be unduly burdensome and would reward Plaintiff’s overly broad discovery requests.
Magistrate Judge Christopher A. Nuechterlein seemed to understand perfectly well what was going on here, that this was a case of the Plaintiff, Perfect Barrier, attacking unnecessarily with an over broad request, and then getting exactly what they deserved. Here is what Judge Nuechterlein said in denying Plaintiff’s motion:
Nothing in the protective order prevents large categorical designations. If Perfect Barrier desired Woodsmart to be more selective in its use of the confidential designation, Perfect Barrier should have utilized more care in drafting the agreed protective order to include more particular language that is consistent with its position. As it stands, the language of the protective order simply requires a “category” designation. Therefore, this Court finds that Woodsmart followed and did not violate the protective order.
While Perfect Barrier may have a voluminous amount of discovery to parse through, it has no entity to blame except itself. Perfect Barrier provided the search terms to Woodsmart as part of its request for production of the email communications. Woodsmart produced every document that appeared with those search terms. In other words, Woodsmart provided Perfect Barrier with every possible document that Perfect Barrier requested. It was Perfect Barrier’s expansive request that produced such voluminous discovery. . . .
To be clear, Woodsmart has not withheld the emails from Perfect Barrier, it has, however, limited Perfect Barrier’s use of them by designating them “attorney eyes only.” If Perfect Barrier upon examination believes that certain emails were inappropriately characterized as “attorney eyes only,” they may challenge the designation, first with Woodsmart and, if that fails to resolve the dispute, then with the Court.
Judge Nuechterlein went on to warn the parties that he would not countenance any attempt by either side to try to shift the burden once again onto him. He said not to send large batches of email for him to review in camera. Instead, he expects Plaintiff’s counsel to sort through it all, and then get with defense counsel to resolve any disagreements as to what should be excluded, or not. If they insist on further adjudication of these e-discovery issues, Judge Nuechterlein threatened to send the whole thing to a Special Master, and force the parties to pay for it. Once again we see a court speak of possible reference of issues to a Special Master as a kind of threat to cajole agreement.
The Plaintiff attacked once again, and objected to Defendant’s production of the email in its original native format. Plaintiff wanted the whole thing to be redone and reproduced in flat, searchable TIFF images, no doubt so they could load it into their review software. There is a significant expense involved in converting native email into into a searchable image format, and Plaintiff was trying to shift the expense onto Defendant.
The court rejected this attack also and held that since Plaintiff had failed to specify a form of production in its request for email, the production in original native format was permitted under Rule 34(b)(2)(E)(ii), which states:
[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
Native format is the form in which Plaintiff originally maintained the email, and so the production was perfectly proper. In any event, the court held that a native form production is also reasonably usable, so there is no grounds to complain. Here are Judge Nuechterlein’s words on this issue:
Perfect Barrier did not request that the emails be produced in a particular form, yet Perfect Barrier now asks this Court to force Woodsmart to produce the electronic emails as Static Images with a bates-number identifier. Woodsmart objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.
Woodsmart has already produced the emails on a disc in Native format. Woodsmart maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires Woodsmart to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for Perfect Barrier to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If Perfect Barrier wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.
Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. Perfect Barrier can access, examine, and even print the communications. While Perfect Barrier may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with Perfect Barrier. Woodsmart complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.
The court once again uses a “gotcha” on the Plaintiff, saying you forgot to ask, so you are getting what you deserve. But in reality, even if Plaintiff had originally asked for production in Static Image form, as the court puts it, that would not necessarily oblige Defendant to comply. Defendant could still have objected, and insisted on native production, arguing that the alternative was simply an attempt to shift the requesting party’s own cost of processing upon the responding party. I have not seen a case on that yet, but I expect this will come up soon.
Finally, this case is very interesting to me because the parties’ memorandums underlying the order include as exhibits several emails and letters between the attorneys where they argue about the meaning of the law review article I wrote on Hash, and the need for Bates stamps, or not, on ESI productions. See Exhibits “D” and “E” to Plaintiff’s Memorandum in Support of Motion to Compel, and Exhibits “D” and “F” to Defendant’s Opposition Memorandum. I do not know any of the attorneys in this Indiana case, so I was surprised to stumble across this debate.
My article on hash was used primarily to support the producing party’s position that the receiving party should bear the substantial costs of Tiffing and Bates stamping. But the receiving party relied on it too, claiming that the best practice advice in the article to include a load file with hash values was not followed. Since the production was probably just a few a big PST files, that would have been easy to do, but would not really have addressed the receiving party’s concerns regarding the authenticity of individual emails within the PST. There are, however, other ways to address the authenticity issues which were not really explored by the parties. That was because their emails attached to the memorandums show that one side was just arguing, and not really trying to solve the problem. It was just a debate, not an e-discovery Art of Peace collaborative venture.
I leave you to contemplate a few of the quotes of Sensei Ueshiba. The insights he gained into the resolution of physical combat have, for me at least, some cross-over value to resolution of legal disputes in today’s combative system of justice. As Perfect Barrier shows, his philosophy and techniques can sometimes succeed perfectly in the arena of e-discovery.
Be grateful even for hardship, setbacks, and bad people. Dealing with such obstacles is an essential part of training in Aikido.
Failure is the key to success; each mistake teaches us something.
If your opponent tries to pull you, let him pull. Don’t pull against him; pull in unison with him.
Opponents confront us continually, but actually there is no opponent there. Enter deeply into an attack and neutralize it as you draw that misdirected force into your own sphere.
Even the most powerful human being has a limited sphere of strength. Draw him outside of that sphere and into your own, and his strength will dissipate.
The real Art of Peace is not to sacrifice a single one of your warriors to defeat an enemy. Vanquish your foes by always keeping yourself in a safe and unassailable position; then no one will suffer any losses. The Way of a Warrior, the Art of Politics, is to stop trouble before it starts. It consists in defeating your adversaries spiritually by making them realize the folly of their actions. The Way of a Warrior is to establish harmony.
Never think of yourself as an all-knowing, perfected master; you must continue to train daily with your friends and students and progress together in Aikido.
The techniques of Aikido change constantly; every encounter is unique, and the appropriate response should emerge naturally. Today’s techniques will be different tomorrow. Do not get caught up with the form and appearance of a challenge. Aikido has no form – it is the study of the spirit.