Almost any construction project carries the potential for disputes, which all too often lead to litigation and associated costs. As litigation costs increase, they eat into potential recovery or limit defense strategies. Finding ways to lower litigation expenses helps eliminate cost as a barrier to a favorable outcome. One area ripe for such measures is e-discovery—the process in any litigation where, as court rules require, the parties collect and exchange electronically stored documents and data. That process necessarily is affected by the way those documents and files are stored and managed. Even before litigation begins, construction companies can take simple steps to reduce their e-discovery costs.
- Organize! Organize! Organize! – Properly organizing the thousands upon thousands of documents involved in a project can significantly streamline future litigation. All electronic project documents should be stored in one location on a company server accessible to all involved in the project, but protected to prevent unauthorized deletion or modification. Separate folders should hold each type of project documents: contracts, drawings, specifications, change orders, schedules, etc. Any paper documents should be scanned and added to the electronic file. With all project documents organized and in one place, most documents needed for litigation can be collected by simply copying the electronic project file, rather than by conducting system-wide searches through multiple document storage sites. Project file organization also reduces expensive document review, leaving more time for your lawyer to focus on arguments that will help win the case.
- Dealing with Email – Like project documents, organizing email files can reduce e-discovery costs. Rather than users creating their own folders to store emails by project, as is commonly done, a company-wide system should be used. All emails pertaining to a project should be associated with a shared email file or assigned a unique identifier (such as a project number) or both. The initial collection becomes more efficient because it targets emails in a certain file or with a certain identifier. With some or most project emails already collected, further required searches become more efficient, thus reducing cost. Finally, any deletion mechanisms for project emails should be suspended to comply with court rules and preserve potentially helpful evidence.
- Publicize Filing Protocols and Make Sure Personnel Follow Them – A well-designed organization system depends on employees implementing and following it. Internal filing procedures and protocols should be laid out in easy-to-follow written instructions and policies. These procedures then need to be published to all personnel who deal with project “paperwork.” Finally, project managers and other supervisors need to conduct routine monitoring to make sure project personnel follow the system.
- Have a “Point” Person – When it comes time to take a dispute to litigation, the process for collecting and producing documents becomes more efficient if one person has primary responsibility for interacting with your lawyer. That person needs to know the full scope of the company’s information technology (“IT”) systems. Often, the company IT manager, or the person most knowledgeable about electronic storage systems, takes on that role and assists with identifying where electronically stored documents and data are located and the subsequent collection.
- Create, Implement, and Maintain a Consistent Retention Policy – Gone are the days of saving all project documents and files forever, a practice that causes massive storage costs. Instead, a business needs a tailor-made document retention policy with different retention standards for different documents. In creating such a policy, a business is wise to have counsel by its side to advise on the various legal requirements for preserving records.
Applying the above tips should make it easier and more efficient to identify, collect, review, and produce electronically stored documents and information in litigation. Doing so helps in pursuing a more proactive than reactive litigation strategy. Counsel can also devote less energy to discovery and more to the substantive legal issues at hand. All in all, these few easy information management measures benefit lawyer and client alike—a “win-win” for both that sets a path for a “win” in the litigation itself.
John A. Greenhall is the Secretary of Cohen Seglias as well as a Shareholder and member of the Board of Directors. In addition, he is a Partner in the Firm’s Construction Group. John’s clients hail from all areas of the construction industry and include general contractors, subcontractors, architects, engineers, sureties and owners.
Michael Metz-Topodas is an Associate in the Construction Group of Cohen Seglias. He represents commercial and construction clients in all stages of litigation from assessing claims and developing case strategy to drafting pleadings, substantive and procedural motions, discovery responses, protective orders, and settlement agreements.