Steve Swart | The Dispute Resolver
“The most complex analyses grow beautifully simple as they become public objects.” Philip Rieff, Fellow Teachers (1973), quoted in JOHN BARTLETT, BARTLETT’S FAMILIAR QUOTATIONS 800 (Geoffrey O’Brien gen. ed., 18th ed. 2012)
In a recent ABA Forum on Construction Law Webinar, a panelist with substantial experience as an arbitrator explained that documents are the most important evidence in a construction dispute. Fact-finders, she said, focus on contemporaneous project records more than witness testimony to vet what happened.
But, even a small to mid-sized construction project can generate millions of pages of documents. That is particularly true when disputes involve loss of productivity, delay, acceleration, and disruption. The volume of records related to entitlement and damages (e.g., timesheets, accounting, equipment logs, schedule files, meeting minutes, etc.) can overwhelm and confuse — not to mention bore — the fact finder.
So, what is a construction lawyer to do?
The Federal Rules of Evidence (and state analogs) provide a helpful way to make your point through summary analyses in Rule 1006, Summaries to Prove Content.
Rule 1006 — The Basics
To handle a mass of records and present it as condensed whole, a party can use a summary, chart, or calculation if it meets the requirements of Federal Rule of Evidence 1006. Rule 1006 allows a party to use “a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006.
Applying Rule 1006 depends on both volume and convenience: again, it applies to voluminous writings, recordings, or photographs that cannot be conveniently examined in court. As one treatise explains, this Rule provides a flexible standard to address the practical reality that time is precious, and attention is limited:
[T]he convenience standard does not require a showing that the source material is so voluminous that the material is impossible for the jury to examine and understand. Given enough time and resources, a jury can comprehend virtually any collection of evidence, no matter how large. But the practical reality addressed by Rule 1006 is that court time and resources are always limited. Instead, the convenience standard is satisfied where, even though it is possible for the jury to digest the source material, appreciable time and effort can be saved by admitting summary evidence.
Victor J. Gold, Contents of Writings, Recordings, and Photographs, in 31 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 8044 (2d ed. Apr. 2023 update) (emphasis added).
The Safeguards
As with any good evidentiary Rule, there are also certain safeguards — including allowing the other party (and the court) to inspect the underlying records or data, and other requirements to keep out inaccurate, incomplete, or biased presentations. Rule 1006 expressly provides that:
(1) The party to make the originals or duplicates available for other parties to copy or review, and
(2) The court may require the party to produce the originals in court.
Fed. R. Evid. 1006.
Courts have implemented various safeguards to make sure that Rule 1006 summaries are not misleading. For instance, the underlying evidence be admissible, the party must lay the proper foundation for the underlying records, and the summary/chart-preparer must be available for cross-examination. BP Exploration & Prod. Inc. v. Cashman Equip. Corp., 2016 WL 1387907, at *5–6 (S.D. Tex. Apr. 8, 2016). Courts have excluded summaries because they are misleading or incomplete, United States v. Oloyede, 933 F.3d 302, 310 (4th Cir. 2019); fail to disclose the basis for (or lacks appropriate) underlying assumptions, United States v. Hart, 295 F.3d 451, 458–59 (5th Cir. 2002); or contain inappropriate argument or inadmissible evidence, Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1160 (11th Cir. 2004).
When You Might Use the Rule
Rule 1006 Summaries can be extremely helpful in complex construction disputes. For example, you might use it to help demonstrate/prove claims involving:
- Loss of Productivity and labor records. See Fireman’s Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 699–701 (2010) (admitting PowerPoint presentation of expert summarizing loss of productivity damages); Nippo Corp. v. AMEC Earth & Envt’l, Inc., 2013 WL 1311094, at *5 (E.D. Pa. Apr. 1, 2013)
- Large amounts of invoices and/or evidence of payment and complex financial data. See BP Exploration & Prod., Inc., 2016 WL 1387907, at *15–16; United States v. Thompson, 518 F.3d 832, 858–59 (10th Cir. 2008); and
- Schedule delay analyses/work progress. Twin K Constr., Inc. v. UMA, Geotechnical Constr., Inc., 597 F. Supp. 3d 1204, 1213–14 (E.D. Tenn. 2022).
Conclusion
Construction cases often involve many documents, the importance of which should not be overlooked. Just because it is possible to use a summary does not mean it is prudent or effective. For example, if there are some great documents in the project file, you will want to highlight, not bury, them. But, when the mass of data and analysis threatens to overwhelm, remember that the Rules of Evidence provide a remedy — one of which is Rule 1006. Just remember, KISS: Keep It Simple: Summarize.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.