Monday, April 25, 2011

Business Litigation "Pre-nups" and E-discovery Mediations

Mediators assist clients in pre-suit negotiations involving complex litigation all the time, but the focus at that juncture in a case is usually on damages and avoiding expenses that will be encountered if actual court litigation ensues. Attorneys who understand the importance of limiting downstream litigation costs should consider alternatives to what I call Mutually Assured Destruction, or pushing the nuclear E-Discovery button in a litigation where perhaps the amount in controversy does not justify the great expense of full-blown data discovery of this nature. Litigation "pre-nups" can include an E-discovery component, confidentially resolving issues of scope with binding agreements-- as well as mediation on the substantive issues-- before resorting to actual litigation. Legal authors in this field, Alison O'Neal Skinner and Mary Mack, have recently advocated taking advantage of these processes early in a case and believe a confidential exchange of proposals on how to create a workable E-discovery plan increases the chances of reaching mutual solutions. ( So next time you are thinking about/encountering the scorched earth discovery plan, try this approach first!