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Alternative Dispute Resolution

‘Litigation Prenup’ Limiting Pretrial Discovery to be Unveiled Today

Posted Apr 15, 2010 11:42 AM CDT
By Debra Cassens Weiss

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A model “litigation prenup” agreement that limits discovery in contract disputes is being unveiled today at a law school dispute resolution conference.

Companies would incorporate the agreement into contracts with partners, suppliers and customers, the National Law Journal reports. The agreement requires dispute resolution before litigation over contract disputes, and says executives should negotiate directly with each other.

The agreement also limits discovery based on the size of the dispute, the story says. When claims are under $100,000, for example, litigants would be limited to four interrogatories and five document production requests. An arbitrator would enforce the discovery contract.

Boston litigator Daniel Winslow of Duane Morris developed the “litigation prenup” with help from the International Institute for Conflict Prevention & Resolution and input from several in-house corporate lawyers.

"This is a hybrid of arbitration and litigation," Winslow told the NLJ. "It allows the parties to have a judge decide the case on its merits, but the process is shaped by the parties and enforced by an arbitrator through binding arbitration."

The agreement will be unveiled at a conference sponsored by Pepperdine University School of Law's Straus Institute for Dispute Resolution.

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