Contracting with potential litigation in mind

At the starry-eyed beginning of any construction project, future litigation is the last thing on anyone’s mind. But parties need not let optimism get in the way of including forward-thinking contractual terms. With some foresight, parties can achieve real savings and efficiencies in future litigation, and especially through limits on the cost-intensive discovery process.

It is well settled that parties to a contract can agree to certain aspects of litigation. The most obvious examples are terms like mediation requirements, arbitration clauses, and in some instances venue and forum selection clauses. These familiar provisions are all ways in which parties can preordain the conduct of litigation or dispute resolution through their contracts. The United States Supreme Court has long recognized that contracting parties may agree in advance to waive procedural rights, up to and including due process rights to notice and hearing. See D.H. Overmyer Co. of Ohio v. Frick (due process rights are waivable).

But the discovery process is often the most financially burdensome phase of a dispute. It is also uniquely susceptible to customization by contract. Federal Rule of Civil Procedure 29 (like many of its state law counterparts) provides: “Unless the court orders otherwise, the parties may stipulate that … other procedures governing or limiting discovery be modified.” A comment to the 1993 amendment explains that “this rule is revised to give greater opportunity for litigants to agree upon modifications to the procedures governing discovery or to limitations upon discovery. Counsel are encouraged to agree on less expensive and time-consuming methods to obtain information …”

Thus, the discovery rules themselves invite parties to craft the discovery process to fit their needs as much as possible. Parties may consider tailoring discovery in these areas:

• Defining preservation requirements: Incorporate a provision that contracting parties have no affirmative duty to preserve evidence until a written request is served.
• Limits on discoverable documents: Agree not to seek disclosure in discovery of certain categories of documents, like wholly internal communications, text messages, or documents outside of particular date ranges. Similarly, parties might agree to limit the number of custodians or file locations to be searched in response to discovery requests.
• Guardrails for depositions: Agree to geographic limits, cost sharing, or a default to remote depositions to minimize expenses.
• Cost sharing: Provide specific terms about the responsibility for costs of discovery — for example, that the requesting party pay for all discovery sought or agree on a calculation for cost sharing or shifting.

All that being said, these types of contractual limitations can be a pitfall for parties who may truly need to take advantage of the full scope of the civil discovery process. If a contract devolves into a significant dispute, a contracting party might be left feeling like it agreed to litigate with one hand tied behind its back, forced to forgo evidence of legitimate claims or defenses. Parties should be cognizant that courts are likely to enforce contractual provisions limiting the scope of discovery, and parties should take care to avoid limitations that prejudice their future interests in litigation.

But in certain contexts, the chance to streamline operations or limit litigation can outweigh these risks. Parties might also consider more measured and scalable limits: for example, keying discovery limits to the amount in dispute or other metrics (e.g., for disputes less than $X, no more than five depositions). Such an option can help ensure that discovery remains proportional to the needs of the dispute.

In short, parties can save time, money and future headaches by making a clear-eyed assessment of the discovery needs of a potential dispute at the outset of a project — that is, before anyone’s judgment is clouded by the bad blood of litigation.

Andrea Carone is a Stoel Rives associate and a member of the construction and design group in the firm’s Boise, Idaho office. Contact her at [email protected].