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?
Ball in your Court 
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William Hamilton said:
Craig, I wonder if the ennui you perceptively detect derives in part from downplaying an important reason for doing e-discovery right. Early on, we were told to get e-discovery right so as to avoid sanctions. Some attorneys were scared straight. Next we heard that doing e-discovery right was a duty owed to the courts. That appealed to some with a more righteous bent. Then we heard that you must do e-discovery right to save clients’ costs. This appealed to the more mercantile among us. While all this is good (and correct), I wonder if we have missed a fundamental driver for competitive litigators. My law students want to know how to win! Oophs, I said the forbidden word. Perhaps we might breathe more excitement into e-discovery, if we just a little bit admitted that we do e-discovery right to win cases.
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craigball said:
Thank you, Bill. I’ve revised the text to acknowledge just what you suggest. Thanks for the support.
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bicyclingfriendly said:
It’s good to read this. Someone needed to say it.
It’s like everyone who was going to learn has learned and anyone who has not learned is not going to because they do not care.
I do think there is a market ripe for education – training paralegals in the practice of electronic discovery. I’m talking about the nitty gritty in the weeds stuff (the kind of stuff that vendors do). There is value to be captured here.
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Kay McCarthy said:
I used to teach ediscovery to paralegals. The class often fell from 20 to 9 within the first few weeks. The “weeds” don’t even get the attention of future paralegals anymore, much less law students. Again, no incentive if they aren’t taught ediscovery as a STRATEGY. That word used to get the attention of CLE attendees in my classes. Not any more.
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craigball said:
Ms. McCarthy: A most trenchant observation. Thank you for sharing it. E-discovery as strategy has gotten a bad rep as it’s seen as synonymous with running up an opponent’s litigation costs. As you know, truly strategic e-discovery brings costs down (although nothing can be as inexpensive as the prevailing strategy of ignoring the electronic evidence altogether or, for that matter, simply closing the courthouses and trusting in everyone to be careful and honest in all things).
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realrecords said:
As a non-attorney Records Manager highly involved in the litigation/legal hold process, I confess to still finding e-discovery exciting and challenging. But perhaps one gets a sense of frustration with the constant evolving, moving-target aspect of discovery…where it sometimes would be reassuring to be able to rely on already-established process, have a feeling of being on familiar ground. Now, as we move on to newer challenges such as ephemeral messaging, re-defining what is discoverable or what is “just conversation” – perhaps the ennui is partly just frustration – and exhaustion.
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Gary H. said:
I imagine the lack of interest – if it is indeed so – may be because of the rarely stated fact that e-discovery is essentially, electronic i.e. technical. i am an IT pro with a keen interest in law and imho e-discovery is 85% IT, if not more, there is very little legal, so teaching it to paralegals may be the incorrect approach, better to teach it to IT and particularly those with a legal knowledge or interest.
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craigball said:
Gary H.: That’s one of the most insightful things I’ve heard said about e-discovery in quite some time. I agree with you in most respects; but, I still believe it’s the lawyer’s responsibility to learn it–the relevant, essential tech stuff,too–because it’s the lawyers’ responsibility to advise clients and negotiate/advocate the scope and protocols attendant to e-discovery. Not every lawyer needs to be competent in modern evidence–I suppose the transactional lawyers can keep doing whatever it is that they do–but every lawyer involved with discovery needs to be competent.
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Pat Cronin said:
It would seem that eDiscovery is really suited for a 3L elective.
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craigball said:
I choose to take the comment to mean, it should be a course offered by every law school rather than it should be positioned in the curriculum in the most marginal, missable way. 😉
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