#COURT FILED DOCUMENTS CONSTRUCTION UPDATE#
Personnel may use their personal device - or devices - for work they may lose, update or upgrade those devices and they may store their data in the cloud. Preserving mobile device data can be tricky. The hold also may need to cover mobile devices, as project personnel, particularly those on site, commonly communicate via text messaging and voicemail. In a construction case, the litigation hold may need to cover personnel who are no longer actively working on the project, as projects often span multiple phases and several years. As soon as possible after the duty arises, counsel should devise and send a “litigation hold” to project personnel, instructing them not to delete ESI or discard hard-copy documents that may be relevant to the case.
Construction practitioners should carefully consider when this occurs: The duty may arise as early as the time of the first differing site condition or change order, or as late as the service of the complaint. In general, the duty to preserve documents arises when a party knows litigation is pending or likely. The first and most important consideration in a thorough document collection is document preservation. This article will cover strategies for balancing time and expense with the requirements of the rules and the needs of the case. As the volume of ESI expands, so too does the time and expense associated with storing, processing, reviewing and producing these records. With a smartphone in every pocket, ESI creation has moved out of the home office and the site trailer and onto the site itself.
Further compounding the increase is the proliferation of mobile devices. Innovative firms capture digital photos of the project, from mobilization through the punch process.īecause ESI is created and exchanged at a higher rate than hard-copy documents, ESI has facilitated a dramatic increase in the volume of records associated with construction projects. Estimators use job cost control programs.
#COURT FILED DOCUMENTS CONSTRUCTION SOFTWARE#
Construction managers use Primavera or similar software to create schedules and workflows. Today, the majority of those records exist only as ESI: Design professionals use computer-aided design (CAD) software to create construction plans. The construction industry has always involved a large quantity of records. As such, timely collection, organization and analysis of electronically stored information (ESI) is crucially important in construction litigation. Nowadays, these documents will almost certainly be created, exchanged and stored electronically many will never exist in hard copy.
In construction matters, most of the key facts are found in documents: contract documents, drawings, plans and specifications, schedules, submittals, progress reports, daily logs, change orders, invoices and payment records. Success in construction litigation often turns less on counsel’s ability to craft legal arguments and more on counsel’s ability to gather, master and present the often complex set of facts underlying the case. Gallagher, Jane Fox Lehman, and Michael I.
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