The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes.' With forum selection clauses, parties can decide where they will litigate future disputes.2 With fee-shifting provisions, they can choose who will pay for these suits. 3 And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether.4 Parties can also waive their right to appeal,5 their right to a jury trial,6 and their right to file a class action.7 Bespoke procedure, in other words, is commonplace in the United States. Far less common, however, are bespoke discovery provisions. Potential litigants rarely agree to alter the scope of discovery prior to a dispute.8 Once a lawsuit is filed, the Federal Rules of Civil Procedure encourage parties to work together to develop a joint discovery plan but parties rarely negotiate such agreements ex ante. Nor are bespoke discover agreements common in arbitration. Even when parties agree to arbitrate their claim, they seldom negotiate the scope of their discovery rights once they get into arbitration. Scholars examing the empirical record have deemed discovery provisions so rare as to be mearly mythical.
71 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss6/5