Is it possible to save on costly “e-discovery?”

Some attorneys are testing ways to head off runaway legal costs in construction lawsuits, including contract clauses ruling out emails as discoverable evidence.

The idea is inviting because one of the biggest risks in a lawsuit is the size of the invoice that arrives from your own attorney.

Propelled by the explosive growth of email, litigation costs today run 20% to 30% higher than six years ago, say attorneys and insurance agents. And recession hasn’t cut litigation and may actually provide more incentives for lawsuits, they say.

Project team members already understand that the ballooning number emails and the voluminous project documentation puts construction in the high-volume category. Even less-senior members of a project team can accumulate over 10,000 emails in a multiyear project.

To try to limit costs for construction companies and their insurers, some attorneys are inserting special clauses in contracts, when they can, designed to eliminate sifting email evidence in a lawsuit.

Ken 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’ emails won’t be discoverable.”

“And the judge will respect it,” he says. “If both parties agree in advance, you can do it in the contract.”

Rubinstein says he has not yet used such clauses.

Other attorneys are skeptical about whether email-eliminating clauses 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 kind of contract clauses, he says. “It depends on the case, too.”

There are cases, attorneys say, where one side feels it must have the other side’s documents to win.

Controlling costs can be much more difficult in defect cases involving insurance company attorneys, another attorney suggests. The insurers tend to use busy lawyers accustomed to spending whatever is necessary to win without regard to time or cost, he says.  “They are more inclined to delay and won’t even get around to looking at your case until four months are gone by, then won’t evaluate until eight months have gone by,” says the attorney. “The only thing that moves those attorneys is the impending trial date.”