I love the word “ennui” (pronounced on-we) It’s from the French for vexing and describes a feeling of languor, lassitude and listlessness. It speaks of an agitation and weariness born of having seen it all before. I picture artists and writers from the Belle Époque or the Crawleys of Downton Abbey before the Great War. “Bring the smelling salts, Carson. Her Ladyship has the vapors again.”
“Ennui” aptly describes what I’m seeing in the e-discovery world. We are bored with e-discovery. It hasn’t gone away, as some foolishly imagined it might. Most have endured rather than embraced e-discovery. The level of discourse about sources and process isn’t much higher than it was a decade ago despite the ascendency of social networking, Cloud computing and mobile devices.
E-discovery didn’t get old because lawyers mastered it and moved on. It got old because lawyers found that they could get by doing what they’ve always done, spending more to deal with familiar forms of evidence and ignoring the rest. Look at a Request for Production in use now and compare it to one from ten- or twenty year ago. Is it all that different, or have we simply tossed “e-mail” or “ESI” into our tedious definitions of “Document?”
The sense of ennui is most palpable when I’m working with others to plan e-discovery education. E-discovery conferences today are as apt to include sessions on cybersecurity, privacy or Information Governance as on e-discovery. Those are fascinating topics in their own right; but, they aren’t the topics we must master to succeed in e-discovery. We have allowed the novel topics to displace the core topics in e-discovery education because so many are bone-tired of hearing about preservation, legal hold, meet-and-confer, cooperation, search, review, forms of production, and the rest.
Plus, apart from predictive coding and all those emerging sources of ESI we’d rather ignore, there isn’t much new or exciting to get our juices flowing. The sky hasn’t fallen on the people who didn’t learn e-discovery (sanctions are ridiculously rare), and when the amended Federal Rules of Civil Procedure kick in later this year, you need hardly fret about sanctions at all. If the other side can’t show wilful destruction of ESI intended to shield it from discovery, you’re nearly bulletproof.
As the ennui settles in, we see fewer opportunities emerging for practical instruction on e-discovery: fewer “how to” courses, fewer law school classes, less in the way of “hands on” instruction and virtually no “next level” training.
Ennui. We have grown weary of e-discovery. It never interested most lawyers, and now it hardly excites any.
If you are reading this blog, chances are, I’m not talking about you. You grasp the power of electronic evidence. You still find this stuff pretty thrilling, and love learning about and sharing your knowledge of ESI. The good news for us is that this season of ennui, like the winter storms plaguing much of the U.S., won’t last forever. The sun will again shine on e-discovery education, and we will be warmed by the enthusiasm of a new generation of lawyers so thoroughly jacked into the net and databases that they will know to look there first when seeking evidence. They will welcome the chance to learn how to do e-discovery well and cost-effectively. They will revel in the way it will help them win; for ignoble or not, winning is what moves trial lawyers most.
Until then, can you please ask Carson to bring back those smelling salts?