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The fact is,” said Rabbit, “you’re stuck.” “It all comes,” said Pooh crossly, “of not having front doors big enough.” Having arrived uninvited into Rabbit’s home through a rather unconventional mode of ingress, Pooh found himself in a terribly tight spot: He was stuck and could not get out. It is a tale for the ages. Oh, not Winnie the Pooh-we are talking about folks who try to get in front by using back doors. Next destination: We’re going to Disney World Stephen Slesinger Inc., owner of the North American rights to the Winnie the Pooh characters and works, sued its licensee, Walt Disney Co. over Disney’s accounting of royalties. The stakes are enormous. Slesinger claimed it had been shorted by hundreds of millions of dollars; it sought those amounts in damages, plus termination of Disney’s future honeypot, its ongoing license. And from the look of things, Slesinger had Disney on the run. Until, that is, Slesinger decided to indulge in a bit of self-help. As a result of Slesinger’s off-the-rules, self-help discovery, the trial court imposed terminating sanctions. Case dismissed. Now, the case is on appeal. Anything can still happen. Oh, but what a story so far. By late 2002, Slesinger had scored what looked to be a critical blow against Disney. After the suit had been filed, Disney destroyed a substantial number of documents from the files of its principal license negotiator, Vincent Jefferds. After a series of hearings, the trial court concluded that “a jury could conclude that Disney’s destruction of Jefferds’ files was done willfully or that Disney willfully suppressed evidence.” The court further found that Disney had misused the pretrial discovery process by destroying evidence, by making false and evasive responses to discovery and by unduly delaying notification about the records destruction. The court found that the document destruction was, at least, gross negligence. The jury would be told about the destruction and could consider whether Disney willfully suppressed evidence. The court ordered that certain representations alleged by Slesinger “shall be deemed to have been made.” And Disney was prohibited from introducing evidence disputing Slesinger’s version of statements attributed to Jefferds. Wow. “Did you ever see such rain, Pooh?” And Pooh said, “Isn’t it awful, Piglet?” Disney’s appeal from the trial court’s sanction order was dismissed, not on the merits, but rather on procedural grounds. Stephen Slesinger Inc. v. The Walt Disney Co., 2002 Cal. App. Unpub. Lexis 10746 (2d Dist. 2002). Disney would have a future right to challenge the order, but not until after the jury had decided the case in the context of all those nagging little adverse inferences. But then Slesinger, like Pooh unable to resist honey, decided to help itself to more. Slesinger hired a private investigator, Terry Sands, “to surreptitiously procure Disney documents outside the regular discovery process.” Stephen Slesinger Inc. v. The Walt Disney Co., 2004 WL 612818 (Calif. Super. Ct. 2004). Sands snuck onto Disney property, at multiple locations on multiple occasions, and helped himself to bagfuls of documents from Disney’s trash. Dumpster diving. When we wrote about it in 1998 (“Inadvertent Production,” NLJ, 12-21-98), there were essentially two reported cases on the subject of whether a party could properly obtain and use otherwise privileged documents by trespassing to rifle through an opponent’s garbage. In Suburban Sew ‘N Sweep Inc. v. Swiss Bernina Inc., 91 F.R.D. 254 (N.D. Ill. 1981), a Suburban representative came onto Swiss Bernina’s property without permission and extracted privileged documents from the dumpster. The magistrate ordered the documents returned, but the district judge reversed, finding that the failure to take better precautions constituted a waiver of the privilege. If the court was concerned about the trespass, it left those concerns unvoiced. A different result was reached in McCafferty’s Inc. v. Bank of Glen Burnie, 179 F.R.D. 163 (D. Md. 1998); while Swiss Bernina had discarded its documents whole, the bank had ripped its trash into pieces; from that, the court found both an intention to keep the materials confidential and the exercise of reasonable precautions to do so. Sparse as this body of law seemed to us in 1998, it somehow seems even thinner seven years later. The Slesinger court cites neither of these cases, nor any others; the only authority it relies upon are a couple of cases establishing a court’s inherent power to sanction misbehavior. “Pooh,” Christopher Robin said, “where did you find that pole?” Pooh looked at the pole in his hands. “I just found it,” he said. “I thought it ought to be useful. I just picked it up.” Come on. This was not a stickup. There was no breaking and entering; no animals, real or fictional, were hurt in the production. Slesinger simply rooted around in the garbage, found some things Disney had thrown away, and picked them up, thinking they might be useful. Disney had already engaged in document destruction the court found to be gross negligence at best, intentional at worst. Disney was found to have made false and misleading discovery responses. Disney was found to have unduly delayed in disclosing its improper document destruction. Can you blame Slesinger for engaging in a little self-help to ensure that it was getting full discovery? Well, yeah, you betcha. Now, did we mention we weren’t there, we don’t have the trial court’s perspective? But then neither was the appellate court. They, like we, will have to defer to the trial court’s read of the demeanor of the witnesses. And if you read the trial court’s opinion, it becomes clear that its read of Slesinger’s investigator was something between unbelievable and scumbag. Sands admitted trespassing at one location, but then argued that it was the only location; the court found that he lied and trespassed at multiple locations. One wonders who came up with the defense “I broke the law at one place, not three,” but there it is. The court found that “Mr. Sands does not impress the Court as a person who considers himself constrained by trespass laws.” Sands’ dumpster dives netted substantial numbers of documents, mostly privileged and highly sensitive, such as counsel’s analysis of the litigation and potential outcomes. Slesinger widely circulated the privileged documents among the company and its lawyers. The court found that “conduct of this sort strikes at the heart of the judicial process.” And it found that no sanction less than dismissal of Slesinger’s complaint was appropriate. There was no way, in the court’s view, to erase the forbidden knowledge Slesinger had gained from the widespread dissemination of Disney’s darkest secrets. There must be, and is, a more relevant authority Now there must be, there is, more relevant authority. With hundreds of millions at stake, we would wager that the appellate briefs (which we haven’t yet seen) will cite a whole bunch of cases. But the Slesinger court might, for example, have cited Lipin v. Bender, 644 N.E.2d 1300 (N.Y. 1994). Lipin accompanied her lawyer to a meeting at opposing counsel’s offices and happened to sit down in front of a stack of documents that had been left on the table, a stack that included a privileged analysis of the case. Lipin helped herself to the documents, read them, took them home, gave them to her lawyers. The trial court dismissed Lipin’s complaint as a sanction, holding: “the actions of the plaintiff and her attorney were so egregious . . . so heinous that the only remedy, as much as I dislike to do this, is to dismiss the lawsuit. Otherwise, there is no meaning to privilege, there is no meaning to conduct among attorneys, and there is no rule of law.” Id. at 1302. Lipin’s conduct, of course, seems to register a bit higher on the egregiometer than Slesinger’s: She wasn’t trespassing, but she flat out stole privileged documents from an attorney’s office that had not been, and were not intended to be, discarded. In a case falling somewhere between outright theft and rummaging through garbage, the court paid homage to the proposition that improper self-help conduct justifies significant sanctions-but declined to impose them. Fayemi v. Hambrecht & Quist Inc., 174 F.R.D. 319, 325-326 (S.D.N.Y. 1997). Fayemi entered his supervisor’s office on a Sunday, turned on the computer and printed out documents that he took home. But Fayemi was lucky. His salvation from sin was that the documents he purloined weren’t privileged and would have to be produced in discovery anyway. So while the court found that Fayemi’s conduct was wrong, it decided upon a lesser sanction-preclusion from using the versions of the documents improperly obtained-that is, no real sanction at all. The distinction seems to be that improper conduct to obtain already discoverable material is not as big a deal as if the same misconduct nets otherwise forbidden fruit. So where are we? Slesinger may be unique on its facts. But what is not unique is that courts are becoming less likely to condone improper conduct. The ends do not justify the means. By all means, be creative in developing your case. But do not engage in self-help that constitutes improper or illegal behavior. Or, like Pooh, you may find ” ‘I have been foolish and deluded,’ said he, ‘and I am a bear of no brain at all.’ “ Jerold S. Solovy and Robert L. Byman are Fellows of the American College of Trial Lawyers and partners in Chicago’s Jenner & Block. Solovy, the firm’s chairman and a past chair of the ABA Discovery and Trial Practices committees, can be reached at [email protected]. Byman can be reached at [email protected].

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