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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Wednesday, May 26, 2004
Partner or Peddler? Entering The Twilight Zone
(05.26.04) The parallel universe (or universes) concept is fascinating. Under this science-fiction like theory, our universe is not alone. To the contrary, our universe exists amongst other similar universes which are nearly identical. Nearly being the operative word. As no two human beings are completely identical – every Big Mac bun nestles small disc like pickle portions rotated at a slightly different degree. Our almost identical universes in the parallel universe concept exist along side one another in almost perfect harmony.
Of course, the allure of a parallel universe is the interesting contradictions that could percolate into view. The small inconsistencies that may not be logical or even possible in our universe may be the norm in our parallel universe. In our parallel universe, Madonna may be an insurance agent, frogs may fly and the sun may rise in the West. Everything else would be a mirror image of our reatlity… that is everything except for the fact that our eerie twin would boast an unlikely, harmonious alliance between electronic discovery vendors and their attorneys/litigation support professional clients – perhaps the most baffling, inconceivable inconsistency found among our parallel universe.
This inconceivable marital bliss amongst E-discovery vendors and their clients as well as their clients’ clients, manifests itself in a universe where electronic evidence is requested, obtained, processed, produced and presented at trial in a nearly flawless and highly effective manner.
In this imperfect universe, there exists a somewhat strained relationship between vendors and their attorney and litigation support manager clients. Rather than embracing attitudes which manifest themselves in constructive communications, mutual collaboration and teamwork, vendors and their clients often find themselves struggling with a dynamic that is largely adversarial.
Back to Nirvana
Seasoned NASCAR racer Scott Riggs counts on Valvoline engine lubricants to get him to that finish line in record time. He waives the Valvoline flag and Valvoline waives the Scott Riggs (Chevrolet) flag. Valvoline is present at his practice track, the pit and the qualifying laps. It is hard to distinguish the endeavor and enthusiasm between the Valvoline folks and the driverRiggs. Riggs enthusiastically test drives new Valvoline products and offers his input to R&D. Riggs understands that his own success is Valvoline’s success and vice-versa. This alliance between client and customer represents a mutually beneficial partnership. In the end, both Riggs and Valvoline are winners. We litigation support folks and attorneys could stand to get a bit of grease underneath our fingernails. We could learn a little from the NASCAR folks and their automotive industry partners.
In our actual universe, few law firms, government legal offices and in-house corporate counsel can point to many victory laps which were the result of a true client-customer alliance. Unfortunately, more often than not, lack of communication and collaboration yield a sub-par litigation support effort. This result may stem from a certain level of mistrust or a belief that the goals of the electronic evidence provider clash with those of the litigator and his or her clients. Which side is responsible for fostering such destructive notions? Is it the vendor that is suspected of viewing the client as just another prospect that may fill that looming monthly quota? Is it the client who deems the Electronic Evidence vendor as an aggressive salesperson looking out for his or her own interests? Although there may be shreds of truth to the stereotypes, in essence this profiling is destructive and drives a wedge between two parties that truly need each other’s skills, trust and respect to bring about desired results.
Crossing the Universal Divide
How can we in this broken universe adopt the success of the parallel universe of ED-Vendor and client collaboration? True to the concept of collaboration, this will require both parties to take some of the following initiatives:
I. Clients should not hesitate to ask their vendor to become involved in the initial strategic planning of a digital evidence strategy. Don’t wait until the discovery cutoff deadlines get tight, bring your vendor in from the get-go. After all, if counsel is in the midst of analyzing the scope, strategy and goals of e-discovery, what better resource is there than the professional that confronts these same issues on a daily basis and therefore knows what work and what does not work?
II. Vendors should query their clients and try to understand their particular strategic goals and pricing considerations.
III. Both parties should discuss any potential legal or evidentiary obstacles which may preclude the admission of favorable evidence or compel the inclusion of damaging evidence.
IV. Both the vendor(s) and the client(s) need to make a concerted effort to really get to know one antoher. The vendor should invite key members of the client’s outfit to tour their offices and attend their seminars and workshops. Legal counsel may wish to invite the vendor to firm functions such as retreats and CLE presentations. More importantly, if feasible the legal professionals and e-discovery professionals should get to know each other as individuals. A lunch or Friday afternoon beers can really turn a slightly strained quasi-adversarial relationship into a friendship.
V. Clients should not be afraid to “think outside of the box” and ask vendors to engage in some unconventional projects. Vendors have tremendous resources at their disposal in the way of access to current legal authorities comprising e-discovery and experts in the industry who may be available to advocate for the client in a hotly contested electronic evidence discovery dispute. Clients can ask their vendors to undertake some of these research or consultative endeavors.
VI. Vendors should be sure to address organizational concerns with the client. Retention policies, the ability to restore backup archival DLT tapes, existing methods of communication between counsel and the client should be understood by the vendor.
VII. Both should assign multiple contact persons to the matter at hand. A sales representative, manager of litigation support, partner overseeing the litigation and customer support representative will be key, however additional players should be identified and brought on board so that there is little chance for a ‘communication blackout.’ Client executives, experts, litigation support consultants and trainers, head paralegals, associates and IT staff at both the law firm and vendor site need to get acquainted with one another. Contact information should be swapped and weekend contact numbers need to be exchanged.
VIII. A vendor must quickly run a conflict of interest check. If the vendor is conflicted from the litigation, this is not a death blow to a partnership. The vendor may exclude himself from this particular litigation altogether (and remain in touch with the client and ready to partner on the next case) or the vendor may attempt to form a “Chinese Wall” and engage the project if he or she can insure that no entity (person or machine) at the vendor site that will work on the new matter is also working on the conflicting matter.
IX. Both parties must not be afraid to show they are fallible. Like any other partners (spouses, law partners, business partners) there will be snags and tough times. Understand this truism in advance and expect a few road blocks along the way. Anything less will be setting up everyone involved for disappointment.
X. Share in the success. A successful result stemming from the combined forces and efforts of a law firm and an electronic discovery vendor is a testament to the capabilities and determination of both. Celebrate your success and, above all, your lasting partnership.
Pat Yourself on the Back and Take the Lead
Striving for a true collaborative partnership by implementing the above efforts will let you find unity with your universe while putting your team in the pole position of the litigation.
posted by Alexander | 11:00 PM