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But day-to-day, you may be mostly working with outside counsel assigned to a matter and they may start to act and seem like the proximate client. Reciprocally, during any litigation outside counsel may be talking to the e-discovery vendor far more than their corporate client.

This can cause tension, some complex politics and require considerable experience to preserve harmony among these three main players.

The vendor may have to spend considerable time advising or educating outside counsel about the corporation’s ESI.

Sources of disharmony

For example, some outside counsel may see the corporation’s e-discovery vendor as at their total command and whose job is only to execute their instructions. Outside counsel may understandably consider their relationship to in-house counsel as the only important one, and yours as vendor merely a bit part supporting role.

Yet this usually breaks down since the e-discovery vendor has lots of unique knowledge about the corporate client’s data, processes and custodians. The vendor may have to spend considerable time advising or educating outside counsel about the corporation’s ESI.

And questions of law under outside counsel’s remit often blur with e-discovery technical and process questions under the remit of the corporate e-discovery vendor, another potential cause of tension.

Most in-house counsel understand their long term e-discovery vendors bring enormous value to the engagement and won’t expect them to “execute only” but add as much value as they can.

And questions of law under outside counsel’s remit often blur with e-discovery technical and process questions under the remit of the corporate e-discovery vendor…

This is complicated by the fact that most corporations have many outside counsel, some of which the vendor only works with once with the attendant steep learning curve.

So close collaboration between vendor and outside counsel is usually required, particularly if the vendor is doing data preservation and collection. But the balance of responsibilities and authority between the two can be hard to locate.

Additional dynamics are introduced where outside counsel had their own preferred e-discovery vendor they wanted to use, or their own litigation support department. From their perspective it would be easier and more efficient to do so.

Another flash point is where you as the vendor see outside counsel requests that are potentially unnecessarily expensive or duplicative.

The pressure on outside counsel to meet deadlines can sometimes mean cost considerations become secondary, even though you as the vendor are usually tasked with cost control.

You have a duty to the corporate client to try to resolve the issue with outside counsel and if this fails bring this to the attention of in-house counsel for review.

If you do report to in-house counsel, however, some outside counsel may resent the fact and see you as second guessing their judgment or intervening in what they regard as their overarching relationship with their in-house client.

On the other hand, be too accommodating to outside counsel without informing in-house counsel of problematic requests and you risk the ire of the in-house attorney responsible for the litigation budget.

How each player sees it

As the vendor, you can start to believe you are being pressured from both sides, unsure who to answer to.

From outside counsel’s perspective, you need the data now and can’t understand why this vendor keeps asking more questions, apparently second guessing your judgment.

You become frustrated that everything about the ESI seems to take so long. You don’t see why the e-discovery vendor should be communicating so much to in-house counsel — your client — about discovery issues.

As for in house counsel: she can’t understand why outside counsel and the corporations’ e-discovery vendor can’t seem to get along and she is being drawn into disputes and perhaps amid some bilateral finger pointing.

You don’t see why the e-discovery vendor should be communicating so much to in-house counsel — your client — about discovery issues.

Overall then, it is possible for an adversarial relationship to develop between the corporation’s e-discovery vendor and outside counsel and even between them and in-house counsel.

Further complexity is introduced in the stakeholder map because the corporate client itself is made up of different actors who become involved in e-discovery service delivery. Not just legal, but compliance, IT, CIS, risk management, vendor management and so on.

Sometimes several of these interests have to be balanced at the same time in a usually deadline driven stressful e-discovery situations.

Beyond a project management problem

Clearly then this is not just a project management or a workflow improvement problem; this is a very human problem caused by overlapping and perhaps not clearly defined responsibilities.

Harmony may break down because of a lack clarity about: roles, process, budget, communications and service levels – particularly about how long e-discovery tasks take.

Even if these are addressed, experience, patience and some emotional intelligence is needed.

In part II we will look at some ways to preserve the three part harmony in corporate e-discovery projects.

Harmony may break down because of a lack clarity about: roles, process, budget, communications and service levels – particularly about how long e-discovery tasks take.