{"id":904987,"date":"2025-11-06T14:39:36","date_gmt":"2025-11-06T21:39:36","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=904987"},"modified":"2025-11-06T14:39:38","modified_gmt":"2025-11-06T21:39:38","slug":"litigation-contracting-with-potential-in-mind","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/litigation-contracting-with-potential-in-mind\/","title":{"rendered":"Contracting With Potential Litigation in Mind"},"content":{"rendered":"\n

Andrea Carone | Ahead of Schedule<\/a><\/p>\n\n\n\n

At the starry-eyed beginning of any construction project, future litigation<\/a> is the last thing on anyone\u2019s mind. But parties need not let optimism get in the way of including forward-thinking contractual terms. With some foresight, parties can achieve real savings and efficiencies in future litigation, and especially through limits on the cost-intensive discovery process.<\/p>\n\n\n\n

It is well settled that parties to a contract can agree to certain aspects of litigation. The most obvious examples are terms like mediation requirements, arbitration clauses, and in some instances venue and forum selection clauses. These familiar provisions are all ways in which parties can preordain the conduct of litigation or dispute resolution through their contracts. The United States Supreme Court has long recognized that contracting parties may agree in advance to waive procedural rights, up to and including due process rights to notice and hearing. See D.H. Overmyer Co. of Ohio v. Frick<\/em> (due process rights are waivable).<\/p>\n\n\n\n

But the discovery process is often the most financially burdensome phase of a dispute. It is also uniquely susceptible to customization by contract. Federal Rule of Civil Procedure 29 (like many of its state law counterparts) provides: \u201cUnless the court orders otherwise, the parties may stipulate that \u2026 other procedures governing or limiting discovery be modified.\u201d A comment to the 1993 amendment explains that \u201cthis rule is revised to give greater opportunity for litigants to agree upon modifications to the procedures governing discovery or to limitations upon discovery. Counsel are encouraged to agree on less expensive and time-consuming methods to obtain information \u2026\u201d<\/p>\n\n\n\n

Thus, the discovery rules themselves invite parties to craft the discovery process to fit their needs as much as possible. Parties may consider tailoring discovery in these areas:<\/p>\n\n\n\n