This is the fifth installment in a series of articles exploring the use of contract terms to limit the costs and scope of e-discovery in disputes between business entities. In this round, we will examine the inclusion of terms that shift costs and limit sanctions based on an agreed-upon e-discovery framework.

In previous installments, we have reviewed the benefits of using contract terms to make e-discovery more predictable. Those benefits have included increased clarity regarding discovery obligations, reduced preservation and production costs, and an easing of burdens on courts and commercial litigants.

Much of the uncertainty in e-discovery arises because of the inconsistent application of sanctions by different courts. It is very difficult to help your clients craft a reasonable, proportionate response to a discovery request when the potential penalty for a mistake is uncertain. How can an in-house lawyer intelligently advise her client regarding the scope of a document search if she can't predictably determine what ex post facto analysis a court will apply to determine culpability?