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.