Karl F. Oles and Heidi L. VanderWel | Stoel Rives
Most companies, hopefully, have a low risk of litigation. However, when litigation is unavoidable, it is important to be as prepared as possible to mitigate expenses and potential liability. Discovery—the process of exchanging relevant information for a case—is an integral part of the litigation process. All parties are legally obligated to both maintain and provide relevant information requested by other parties to a case. Thus, the more organized a company’s records are, the better that company’s odds will be in the event of litigation. Prudent planning may help a party avoid some of the pitfalls that can accompany the discovery process when it faces litigation.
There are generally three main avenues of discovery in construction litigation matters: interrogatories, requests for production, and depositions.
Interrogatories consist of written questions structured for the purpose of gathering information to help a party prepare its case for trial. A company with well-organized business and project records can more quickly and efficiently respond to interrogatories with the help of legal counsel. However, companies that fail to properly organize their records will face the time-consuming and expensive task of tracking down necessary information. The unorganized company must incur the expense of paying its own personnel to find the information as well as increased attorneys’ fees associated with extra communications and diligence that must be handled by counsel. Construction counsel can help companies implement organizational practices that will address a company’s unique needs if ever required to respond to interrogatories.
Requests for production are written requests to provide relevant documents, communications, and other tangible and intangible items relating to the dispute. Requests for production make proper methods of organization a critical practice for any company, as failure to preserve and provide the relevant documents or other items requested could lead to court-ordered sanctions or losing the case. It is important to remember that all correspondence, including internal communications relating to a project, must be maintained throughout the project and must be produced if requested during litigation.
All company personnel should be trained to organize project records where they are easily searchable. All financial records for projects should be separate from other company financial records. Every company should ensure its computers, laptops, phones, and other technology are backed up to a secure server that is always accessible to top company officials. Counsel can help a party ensure its document retention policies are long and robust enough to meet discovery obligations and ensure protocols are in place for managing the laptops or hard copies of departing employees.
Additionally, company employees should be trained to keep their written communications as professional as possible. Officials and employees should be aware that any email, text message or letter sent through official company channels has the potential to end up in court even if the correspondence was sent from one employee to another and was never intended to be seen by anyone outside of the company. Counsel can help a party create organizational methods that will streamline the production process in the event of litigation.
In a deposition, an individual is asked to provide oral testimony under oath regarding their knowledge of information relevant to the case. A deposition is not an ordinary conversation, so it is important to consult with, and listen to, the advice of your attorney to understand the process. When requesting a deposition, the opposing party will typically ask for the person “most knowledgeable” about a certain part of the project. Once again, it is helpful to maintain organized records of the project so that the company can readily know who fits that description and put them in contact with its attorneys to begin preparing for the deposition.
If, for any reason, a company loses relevant case information, the company should reach out to its attorneys to assist it with resolving any potential issues. There are several ways in which we can help avoid liability in these situations, including objecting to irrelevant or unlawful requests or obtaining a legal hold.
In short, organized records lead to better litigation odds. Similarly, the sooner a company consults with counsel to assist in preparing for legal challenges, the better prepared the company will be in avoiding unnecessary liability. Many parts of the litigation process are complex. Construction attorneys can explain the litigation process and help implement practices that can save companies from the liability and expenses that accompany it. All clients are different, and reaching out to counsel to create methods of organization that are tailored to your business may lighten your burden in the event of litigation.
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.