A Lesson From Pooh

I cringe when I hear lawyers say things like “litigation is like war.” Litigation is not like war. Certainly, passions get high, and there are often high stakes involved. But, at the end of the day, everyone goes home (unless you're in criminal court).

I like to think that litigation is more like sport. There is a winner and a loser, usually. There are rules, and there are neutral parties who enforce and interpret the rules. And there are consequences for breaking the rules. Just ask Stephen Slesinger Inc. (SSI), owner of rights to Winnie the Pooh.

In 1991, SSI sued Disney, claiming that Disney owed royalties to SSI under a license agreement to use Winnie the Pooh and its associated characters. In connection with that lawsuit, SSI hired an investigator to surreptitiously obtain Disney documents. These circumstances led an appellate court to conclude that SSI's tactics went far beyond what is permitted under the litigation rules.

What exactly did SSI's investigator do? The court concluded that he broke into Disney office buildings and secure trash receptacles to retrieve Disney documents; and trespassed into the secure facility of the company Disney hired to dispose of its confidential documents. Over the course of years, the investigator took thousands of Disney documents, some marked confidential and privileged.

SSI claimed not to have done anything wrong. According to SSI, all of the Disney documents were taken from publicly accessible dumpsters and no documents had been altered. SSI also concealed its actions, claiming Disney had provided the documents during the course of litigation.

Unsurprisingly, the trial court and appellate court rejected SSI's arguments. Not only had SSI wrongfully obtained Disney documents, the court found that SSI representatives had altered some of the Disney documents by removing “confidential” designations to make the documents appear not to be confidential. In the end, the trial court concluded that SSI had “tampered with the administration of justice and threatened the integrity of the judicial process.” According to the appellate court, SSI's “pattern of misconduct was breathtaking.” Both courts reasoned that SSI's misconduct was so egregious that the only sanction appropriate under the circumstances was to dismiss SSI's entire case against Disney.

The lesson here is that, when you litigate, make sure you and your lawyers play by the rules—just as you would in sports. Don't let your emotions turn you into one of the “bad guys.”