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Legal Notes: Access to project emails is critical to dispute resolution

John Bleasby
Legal Notes: Access to project emails is critical to dispute resolution

Architectural, Engineering and Construction (AEC) organizations are losing huge amounts of project information to the cloud, says a recent report. These losses impact construction contract disputes when critical project correspondence cannot be accessed.

The research, conducted by Mail Manager, a division of regulatory and compliance solution provider Ideagen plc., reviewed survey responses from over 500 AEC leaders in the United Kingdom and the United States.

“Less than half of respondents file important information to central locations,” the study says, leaving information accessibility and visibility a major challenge. This is particularly poignant, given that good document and records management can be key to dispute resolution or litigation success, the study says.

Put it down to growing digitization and hybrid work solutions. The study said 80 per cent of respondents reported the majority of their project correspondence is via email.

“Email remains easily the most used project correspondence tool. However, the research finds that many AEC organizations still struggle to access the information they need, when they need it. The retrieval of information is a major challenge for the industry, and our new hybrid working world is exacerbating this.”

With project scope changes, payment issues and timelines being the leading causes of disputes, this can lead to serious problems.  When combined with staff turnover, the absence of a central email filing protocol across the business means the information is then lost.

“Legal processes have strict rules when it comes to preserving and disclosing documents, including electronic correspondence,” Paul Conrod of Construct Legal told the Daily Commercial News. “For example, parties have an obligation to preserve their documents once litigation is reasonably anticipated. When a lawsuit gets to the document disclosure stage, parties are generally required to produce all documents that are relevant to the issues in dispute, with some exceptions, such as privilege.”

Conrod says document retention and disclosure can be onerous in a document-intensive industry like construction.

“If emails for a specific project are only saved in individual inboxes or are mixed in with other unrelated emails and documents, staff may have to spend valuable time searching for and organizing emails to litigate disputes. There is also the risk that some relevant and valuable emails may be missed in these manual searches.”

A secure, centralized method of retaining the information contained in emails is obviously essential. There are straightforward, systematic solutions.

“While it is true that most, if not all, of the project correspondence rests in the inbox of project personnel, there are ways in which the information/documents can be identified, preserved and retrieved from those inboxes,” Sahil Shoor, partner with Gowling WLG, told the Daily Commercial News.

“One such way is to issue a Notice of Litigation/Preservation to everyone on the project team, often called ‘custodians with information’, once it is clear that a dispute is on the horizon. A party to a project must take the necessary steps to identify, retain and eventually collect documents and information that are relevant to the allegations.”

Shoor suggests that steps should be in place to identify and preserve all hard copy or electronic information, regardless of format.    

“The term ‘hard copy or electronic information’ should be interpreted in the broadest possible sense to include all materials in any format and whether in hard copy or stored in electronic form, including, but not limited to: flash drives, computer discs, computer hard drives, back-up tapes, personal computers, portable computers, workstations, minicomputers, personal data assistants, portable or  removable storage media, servers, databases, e-rooms, file shares, SharePoint sites, or other forms of online or offline data storage.”  

The researchers at Mail Manager conclude their report by challenging AEC company leadership to seek effective solutions that address the impact of the new home-and-office work hybrid.

“Legal disputes and employee concerns over a lack of information visibility will continue to increase as businesses fail to deploy tools which will allow them to find their documents and information quickly and efficiently.”

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com

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