Litigation Prenup Agreement
At the September 21, 2016 luncheon, Dan Winslow (Rimini Street, Inc.) invited SVAGC members to participate in crafting a litigation innovation to save costs and delay in civil disputes: a Litigation Prenup Agreement that can be incorporated into contracts instead of conventional ADR.
Under such an agreement, commercial disputes basically remain in the court system but all discovery is conducted pursuant to a discovery agreement that was incorporated by reference when the parties first contracted. The discovery agreement is subject to an arbitration clause, with fee shifting to prevailing parties in discovery disputes. In short, it is a hybrid of litigation and arbitration that can reduce dispute costs by ~40%.
The original proposal was unveiled in 2010 and has failed to be embraced by the corporate legal community because innovative or unusual terms in contracts generally draw redline strikes by transaction counsel.
Dan invites all SVAGC members interested in discussing the Litigation Prenup Agreement to contact him directly at: firstname.lastname@example.org.
If members are interested, Dan would like to invite review and comment on the 2010 draft that can be updated to a 2d edition litigation prenup. If SVAGC members then pledge to incorporate this provision into some or all of their contracts (i.e. vendor contracts would be simplest), it would be a newsworthy event that Silicon Valley corporate counsel are leading the charge for a cost-saving innovation in civil litigation.
Dan has provided theses links to background materials: