Using Contract Terms to Get Ahead of Prospective eDiscovery Costs and Burdens in Commercial Litigation

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, other clauses not only limited liabilities, warranties, and damages, but also attempted to establish the applicable burden of proof for any given dispute. While such provisions have been challenged as unenforceable in circumstances of unequal bargaining powerforexample contracts between a business and a consumeror inequitable conduct such as fraud, by and large courts have enforced these provisions, especially in commercial contracts between business enterprises