Can contract provisions reduce discovery risks?

• Position: E-DISCOVERY

The pressure is on. Corporate counsels are looking for ways to reduce the impact of e-discovery and lower its price tag, which are not easy tasks given the tremendous volume of electronically stored information and plaintiffs' growing sophistication in aggressively seeking e-discovery. Add to that the court's willingness to sanction defendants for non-compliance, and it's understandable why corporate defendants are feeling pressured. After all, according to an article in Law Technology News, it's estimated that discovery costs now account for up to 50% of total litigation costs.

One approach that may help control costs is the use of contract provisions whereby parties negotiate the terms of e-discovery at the beginning of the relationship. Many issues could be addressed, including specifying when the duty to preserve begins, specifying the types and sources of data to be preserved and searched, determining fee and cost-shifting provisions, and limiting the availability of discovery sanctions.

How successful this approach could be is unknown due to the lack of case law. Corporate counsels should be prepared for...