Heading Off Runaway Costs of E-Mails in Lawsuits
Is it possible to save on costly "e-discovery"? Some attorneys are testing ways to head off runaway legal costs of construction lawsuits, including contract clauses ruling out e-mails as discoverable evidence.
The idea is inviting because one of the biggest risks in a lawsuit is the size of the invoice that litigants receive from their own attorney.
Propelled by the explosive growth of e-mail, litigation costs today run 20% to 30% higher than six years ago, say attorneys and insurance agents. The recession hasn't cut litigation and may actually provide more incentives for lawsuits, they say.
Project team members already understand that the ballooning number of e-mails and voluminous project documentation put construction in the high-volume category. Even less-senior members of a project team can accumulate more than 10,000 e-mails on a multiyear project.
To limit costs for construction companies and their insurers, some attorneys are inserting special clauses in contracts, when they can, that are designed to eliminate sifting e-mail evidence in a lawsuit.
Kenneth Rubinstein, an attorney with Preti Flaherty in Boston, says he has "talked to colleagues that put in language saying that even if there's litigation, parties' e-mails won't be discoverable.
"The judge will respect it," he adds. "If both parties agree in advance, you can do it in the contract."
Skepticism on Clauses
Other attorneys are skeptical whether clauses that eliminate e-mails can be used widely. "If you're in court, you have to play by the court's rules," says one experienced construction attorney. "I'm not sure they would respect" those types of contract clauses, he says. "It depends."
There are cases, the attorney says, in which one side feels it must have the other side's documents to win.
As a consultant and expert witness, excluding emails in litigation could be problematic. Are we talking about internal emails only? I would think that an email you send to the other par...
Bill Pepoon
Large volumes of project emails and their associated risk is why so many project teams are moving to collaborative project management applications. Within a collaborative pm tool attorn...
As usual, lawyers will want to try new contract language so they can create more legal battles. Even with any contract clause, I'd always presume e-mails are discoverable.
I would venture to say that the vast majority of project communication is now conducted electronically. If e-mail were not discoverable, there wouldn't be much left to discover.<br/><br...
The fact that everything is in writing shouldn't make litigation more difficult or expensive unless you don't want the facts to get in the way. If you make project communications undiscoverable, you may get to a verdict more cheaply, but the verdict is likely to be less equitable, more random.
E-mail is date-stamped and searchable. The facts should be easier to find, not harder. Clients make the mistake of letting their attorneys read 10,000 e-mails at $200-$400/hr, when a para-legal or temp. could do that job. Better yet, the client can direct the attorneys to the facts that are relevant, instead of letting them spend millions wandering through the files in search of a theory for the case. Your attorneys may tell you that they need to read every e-mail to maximize their chances of success, but they can't guarantee success, and most cases never make it to trial. E-mail is not the reason some clients get fleeced. It's the same old story of a fool and his money.
Remember that the lead attorney may be the star quarterback, but you're the owner of the team.
