Kelley J. Halliburton | Construction Executive
The construction business has always been heavy on records and data but now more than ever much of that information is stored electronically. Gone are the days of just a trailer full of drawings and paper documents.
Construction projects now have huge amounts of electronically stored information (ESI) including contract documents; drawings in both CAD, PDF and other formats; schedule files such as Primavera; spreadsheets; photos; job cost control software files; formal correspondence; and an ever-expanding amount of email communications. Successful collection of this ESI can be critical to the success of litigation in construction cases, where often very complex facts will need to be gathered to support a claim or defense.
The best first step to a successful ESI collection is to build a solid foundation before trouble arises with prepared policies and procedures in place. Implementing and enforcing a document management plan on a project basis will make sure documents are kept in an organized fashion so that materials can be accessed quickly and easily. Document management is important for types of ESI that are not handled well by word-searches, including Primavera schedules, photos and videos.
Preparing document retention procedures outlining such things as where data is stored, how long to keep it and who has access to it will help when it comes time to implement a litigation hold and prepare for document collection. Policies and procedures for data from departing employees is especially important to have in place, as there may not be another chance to capture data once the employee has moved on. This is critical if collection of mobile devices is necessary. With the proliferation of smart devices and text messaging, collection of data from mobile devices is more and more likely to be required. Documented and enforced policies regarding the use of work-issued mobile devices such as phones, tablets or laptops and Bring Your Own Device policies for employees authorized to use personal devices for work will help with identifying, retaining and collecting data later.
Once potential litigation arises, a litigation hold must be put in place. Automated deletion of data that is part of a document retention policy must be stopped once the litigation hold is in place. Because the duty to preserve data begins once litigation is reasonably anticipated, that duty could arise as early in a project as the first change order request, an on-site accident or a differing site condition but would certainly arise once served with a complaint.
At this time, analyzing the project data can help confirm whether the litigation hold has reached all the necessary people. Does the project use a cloud-based document management system to store project documents and disseminate correspondence between participants? If so, is the document management system hosted by the organization or by someone else, such as the project engineer? A litigation hold may need to be communicated to the host of the document management system to make sure data is preserved at the completion of the construction project.
Understanding what types of communications may have been used in the field beyond formal correspondence (submittals and letters) and emails is also important. Was a communications platform such as FieldChat or Slack in use? These platforms have data separate from email systems that will also need to be collected in coordination with the IT department or the organization that hosted the platform if they were outside of the company. Was text messaging used? Mobile collection will likely be necessary in that case.
Once a litigation hold is in place and confirmed, analysis of both the ESI and the people with the data must continue. Are project files such as submittals, correspondence, schedules, etc., stored and organized on a shared company server? Who are the employees who have relevant information? Develop a comprehensive list of everyone who may have information relevant to the project, and then work with counsel to try to prioritize the list.
The employees with relevant information, known as data custodians, should then be interviewed with counsel to determine their personal data management practices and help decide where and how to collect their data. These interviews should cover the use of any shared network servers or EDM systems, work devices, personal devices and removable media, and can assist in limiting redundant or unnecessary data collection while capturing as much relevant information as possible.
At the same time, the interview can help counsel gain information regarding time periods and project background from the custodians that can assist with further tailoring the data collection. Assisting counsel with access to this information prior to the development and negotiation of ESI protocols in the litigation will help in tailoring the protocols to the data.
Once these steps are taken, a document collection plan can be created and implemented. A data map of the different sources of relevant data should be created and procedures developed and documented step by step to collect the data. Determine if forensic collection is necessary – unless there have already been claims of data spoliation where a forensic collection may be necessary, a logical copy will suffice. Self-collection by the actual data custodians by simply copying their files is highly disfavored due to issues such as unintentional alteration of document dates and inadequate searching. Generally, the data collection should be done with the supervision of counsel using either in-house IT resources (if available and sufficiently robust) or with assistance from an outside vendor. Outside vendors may even be able to accomplish most of the data collection by remote means.
Email and data stored on in-house shared servers and workstations is relatively straightforward to collect. Data stored with cloud providers may have different policies and protocols for collection, but most e-discovery technology solutions and vendors can integrate with these providers to collect data. Mobile device collection may also require specialized expertise from an outside vendor unless the company has already prepared its IT department in advance to do this type of collection regularly (for example, when an employee separates from the company). Backup tapes or disaster recovery systems are difficult and expensive to collect and generally counsel will negotiate the ESI protocol so that use of these systems will only be as a last resort.
By putting document management and retention procedures in place in advance, understanding the ESI involved in a construction project, developing a data map and collection plan, and utilizing and documenting defensible collection methods, construction companies can make sure that the information necessary for supporting legal claims or defenses is available to counsel and increase the chance of a successful result in the litigation. At the same time, these steps will help hold costs down by cutting down on collection of irrelevant or duplicative data.