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BY DERA J. NEVIN TECH SUPPORT Using discovery agreements Meet-and-confer conferences can help limit scope and therefore costs. or discovery agreements. Proponents say that discovery agreements let par- ties limit the scope — and therefore cost — of documentary discovery. Liti- gation procedures are streamlined by narrowing issues early, circumscribing "relevance," and limiting interlocutory procedural motions. However, detractors say a mandatory C discovery agreement procedure raises litigation costs and delays the parties' ability to prosecute litigation effectively. Because the meet-and-confer process is conducted early, parties are often unable to determine the most relevant issues. Further, delays in getting past discovery can result in justice denied. While meet-and-confer conferences have their place, they must be used well. Because litigation is an art, as well as a science, discovery agreements are a function of the effort put into them. Having consulted on hundreds of dis- covery agreements, I have observed they are only as effective as the willingness and creativity of counsel to use them to strategic advantage. I have been involved in meaningful and tough negotiations that have measurably reduced discovery costs both for my clients and overall. However, I have also seen parties fail anadian lawyers continue to adapt to new rules in various jurisdictions that require or permit meet- and-confer conferences to tailor the model discovery agreements to the requirements of their case. When parties spend weeks concluding such a pro forma agreement, they can justifiably complain about this new step — and even more so when the other side's pro- ductions are unreadable! Where parties can agree on the materi- al issues to explore during oral discovery, 18 JULY 2011 www. CANADIAN Lawyermag.com they can use robust preservation provi- sions, with collection proceeding in a phased way so that review occurs first on the documents deemed most essential to the disposition of issues in the litigation. Using both strong preservation require- ments and phased production can, in appropriate circumstances, streamline documentary and oral discovery. t o y our adv anta g e