“We few, we happy few, we band of brothers!” so exclaimed Henry V – as envisioned by William Shakespeare - in his rousing speech to his band of English footmen in rallying his badly out-numbered and de-moralized soldiers to victory over the French in the Battle of Agincourt, 1415.

And – methinks - that this would be a good time for a new Henry, delivering an inspirational talk to our own self-doubting minions.  It is indeed a time for someone to remind those on the e-discovery fields of battle of their own real worth and the uniqueness and significance of their mission.

For it seems that, with the coming of the “Great Recession,” a newly strident tendency to disparage those involved in professional e-discovery practice is becoming more commonplace.  In the face of clients’ growingly vociferous assaults on discovery expenses that are characterized as merely ancillary or, worse yet, uncalled for, and the pragmatic (and almost always “of-necessity”)  retreat of trial counsel in the face of such client push back, the front line of e-discovery has caved.

There is a measured, but explicit, retreat of many of those who are most engaged in the discovery practice in continuing to uphold the real significance of ESI discovery; not infrequently, a feeling of exploitation and belittlement as those who specialize in e-discovery practice are relentlessly whip-sawed between the issues of minimal expense and maximum defensibility.  Also finding themselves asked to retain supporting service providers less often than actually needed (and, too often, compelled to retain questionably competent, although very “cheap” vendors, to boot).  They strive to achieve so much more with so much less.  

Resulting in a radically re-thinking of the use of their time and resources (at the very moment that said time and resources are subject to disparagement).  And occasionally compelled to withstand attack upon the core worth of their most meaningful efforts, while, simultaneously, finding themselves coerced into demeaning and frustrating interaction with vendors whose aid they sorely need but whose fees are subject, by fiat, to deep and baseless discount, while invoices languish long-overdue in payment.

But some believe in this: That the attempt to rationalize performing pre-trial aspects of litigation practice with less sophistication and formality in an effort to ameliorate cost, must impact on the entire scope of the endeavor and diminish the professional lives of all those making up the constituency of litigation practice.  More to the point, doing cursory work in discovery practice leads to a mind set of cursory work, in general.  That, even if spoliation motion practice and sanctions and other fraught direct negative repercussions are evaded, a steep, although sometimes more amorphous, price is paid for such an approach.

And so, one must resist, consistently and as best one can, this diminishment.

It is the very heart and soul of professionalism and, ultimately, success itself, to resist the marginalization of what one does.  The meaningful, up-lifting aspect of what professionals do is rooted in their efforts’ value and integrity. Should we deny both, we are denying our own worth.

I also believe that the practice of e-discovery is a bellwether of the state of litigation, in general.  E-discovery, as we know, in light of the tiny percentage of actual trials, is arguably the most influential element of litigation practice.  Also, it is, arguably, the most cutting-edge, innovative, forward looking and technically challenging aspect of the realm inhabited by the litigator and it simply cannot, in the longer term, be rendered banal without visiting a sense of diminished worthiness upon the entire field.

Moreover, of course, there are ways of approaching the cost-based struggle without loss of pride of place. The e-discovery cognoscenti, in particular, should not be back-peddling an iota in advancing the significance and influence of this aspect of the practice. 

More work can be internalized efficiently; negotiations with capable service providers can be better prepared for, more focused and appropriately sharp-edged, yet equitable; clients concern about cost can be –and must be- addressed without undermining the self-worth and status of those that have made their passion, career and, often, their avocation the innovative and stimulating discipline that is the discovery of electronic evidence.

And, of course, there are ways of being considerably more cost effective in providing e-discovery services, without compromising its pivotal importance.  You can use “self-help” to harvest Electronically Stored Information (ESI) in a manner that minimizes expense without compromising defensibility; you can use established techniques to constrain the cost of processing; you can invest in automation and reduce the data to be reviewed and, ultimately, to be produced more aggressively and apply new search technology to reduce, often dramatically, the time and cost dedicated to the human review of ESI.  All of this will lower the client’s bills and, not very far down the road, and, in some instances, after a not immoderate investment for new equipment, applications, training and support, one will be on a High Road to constraining costs in the discovery phase. And the Return on Investment (ROI) is often striking.

Most importantly, understanding your own true worth and the importance of your mission and communicating about these aspects with, as well as vigorously supporting, as best you can, your Band of Brothers, will have a significant positive impact upon your own frame of mind and, ultimately, your career success in the practice of the discipline of e-discovery.

About Robert Eisenberg

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