NEGOTIATING A SUCCESSFUL
E-DISCOVERY CONTRACT
•THIRD-PARTY USE: Partnering with a known
and vetted service provider is important. Limit
the ability of the service provider to subcontract
without approval.
•INTELLECTUAL PROPERTY: Understand where
data are stored and who owns what intellectual
property.
•CONFLICT OF INTEREST: Ensure there are no
conflicts of interest, and determine what will
happen should one occur.
STATEMENT OF WORK (SOW) TERMS:
•PRICING: Include agreed-upon pricing terms
based on negotiations in phase two.
•DATA WORKFLOW: Include the project
specifications from agendas, rate cards and
conversations developed in phase two, as well
as workflow documentation and transparency
learned about in earlier phases.
AND DON'T FORGET ABOUT…
If you are using new technologies, your contract
should allow you to build a safety net if the
technology does not work.
Reviewing a service provider's preliminary contract
will also give you insight into the areas that this
service provider wants to protect, the areas a
service provider values and the areas they might
have had problems with in the past.
Your clients also have draft contracts that include
terms important to the company. Reviewing these
can help you establish terms that work well for you
and the service provider.
NEGOTIATE YOUR WAY TO
SUCCESS
Getting to know a potential partner can be a timeconsuming process, but it is a valuable exercise that
helps build solid working relationships. Successful
contract negotiation also creates a relationship
through which compromise and mutual benefit can
be achieved.
•COMMITMENT TO SERVICE: Include the projectbased commitments to service determined
during phase two.
•APPROVAL OF KEY PROJECT PERSONNEL: Based
on your personnel interviews, include the names
of personnel you want working on your case.
Jenny-Rebecca Lewis is is a manager in the Electronic Discovery and Litigation Support department at Sullivan
•DOWN TIME: Memorialize when and how
holidays, weekends and down time will be staffed.
& Cromwell LLP. In her 12 years at Sullivan & Cromwell, Jenny has worked with the firm's clients and case teams
to create strategies that accomplish efficient and effective ways of meeting complex discovery requirements.
Contact her at lewisj@sullcrom.com.
•EARLY PAYMENT: If possible, create incentives
for early payment (within seven or 14 days).
