Using contract terms to limit e-discovery costs and burdens in commercial litigation

Even the most well-drafted contract terms will be for naught if they aren’t enforceable

This is the final installment in a series of articles exploring how businesses can utilize contract provisions to ease the headache associated with electronic discovery. As these articles have detailed, much of the uncertainty, excess costs, and burdens related to e-discovery can be obviated through the mutual adoption of contract terms conscribing the scope of e-discovery in the event of a dispute. Such contract terms would effectively provide a pre-defined set of rules for parties to follow in the event that a dispute arises and e-discovery obligations come into play. This final installment summarizes the articles before it, identifying the various terms you may want to incorporate into your contracts and how to maximize the likelihood those terms are enforceable.

In the last decade, businesses have experienced sweeping changes when it comes to the discovery of electronic information. Because the state of e-discovery jurisprudence is rapidly evolving and no business wants to see itself the subject of court-imposed sanctions, companies are oftentimes adopting a least-common-denominator approach to their discovery obligations, internally applying the most restrictive rules and, as a result, incurring significant costs. But, just as companies reacted to the increasing complexity of 20th century civil litigation by using contract terms — such as choice of venue, choice of law, and arbitration provisions — so too can companies use contract terms to ease the 21st century burdens of e-discovery. Use of contract terms outlining e-discovery expectations are to everyone’s advantage: Businesses will benefit from reduced costs by establishing a predicable discovery framework; parties and counsel will reduce their risk of incurring sanctions because obligations are well-defined; and courts will be relieved to look to contract terms rather than the ever-complex state of e-discovery law.

Contributing Author

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Jay Brudz

Jay Brudz is a partner in Drinker Biddle's Commercial Litigation Practice Group and co-chair of the Information Governance and eDiscovery practice. 

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Contributing Author

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Alexander M. Brodsky

Alexander M. Brodsky is an associate in Drinker Biddle’s Commercial Litigation Group with experience in complex business disputes, patent infringement actions, and telecommunications litigation and...

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