This is the second in a series of articles exploring how e-discovery costs can be contained by limiting discovery with mutually agreed-upon terms in commercial contracts. In the first article, we outlined the potential for corporate counsel to avoid the black hole of e-discovery costs by using model terms ahead of time to:
- clarify that the duty to preserve attaches only upon notice of a claim;
- limit the amount of discovery allowed;
- establish mechanisms that govern preservation and production decisions in a predictable framework;
- establish procedures allocating the costs for discovery; and
- outline restrictions on sanctions for purported discovery failures.
The most well-drafted contract terms, however, will be for naught if they aren’t enforceable. In this article, we will lay out some practical tips to maximize the chances that those carefully negotiated clauses will govern any dispute arising under your contract. In general, the best rule is the golden rule: Do unto others as you would have them do unto you.