E-Discovery: Important in Construction Law

E-Discovery has been a hot legal topic over last several years, and it has impacted most all areas of the law. For the non-lawyers out there, discovery is the exchange of information during litigation, and it has changed drastically because the way we (as a society) keep information has changed. Our important information used to be all on paper, but now it is primarily digital. And, so, we have e-discovery, which is more complicated than just sending the lawyer on the other side a box of documents. Now, we need to be able to understand all of the places where this digital information lives and how it can be transported from the client to the lawyer for an opposing party — without altering or deleting any important information.

For the construction lawyer, e-discovery is extremely important. In fact, e-discovery is probably more important for the construction lawyer than for most other areas of the law. This post provides a list of the reasons that e-discovery is important to the construction lawyer. In future posts, we will talk about some particular e-discovery issues that we hope will be helpful to construction lawyers as well as to stakeholders in the construction industry. So, here is a list of the reasons e-discovery is important in the practice of construction law:

1. There are just more documents in construction law than in other areas. Usually, the largest category of documents are e-mails, and construction cases are very e-mail intensive. Why? Because the owner e-mails the engineer or architect, the engineer or architect e-mails the general contractor (who is also e-mailing the owner or the owner’s representative), then the contractor is e-mailing the subcontractors, the subcontractors are e-mailing their sub-subcontractors. All of this e-mailing back and forth often creates a huge set of e-mails for any given case. As we will discuss in a later post, this makes the e-discovery concept of de-duplication very important in construction litigation.
2. The records in construction cases tell the story. Construction cases often include delay claims or other types of claims where lawyers have to piece the story back together and re-live it. We can do that using the important documents – progress meeting minutes, daily reports, logs, calendars, change orders, work change directives, etc.
3. Most of the construction industry has been progressive in using new software and hardware to become more efficient and sophisticated. Many project superintendents now keep all of their information on iPads or other digital devices (instead of on notepads). Many contractors use Primavera (project scheduling software) and work closely with architects and engineers in using Computer Aided Design (“CAD”) and Building Information Modeling (“BIM”) software to assist with project design and construction.

So, it is very important for construction lawyers to keep up with the evolving law of e-discovery, and it is important for other stakeholders in the construction industry to know about some key e-discovery concepts.