Construction Litigation: What is the Deal with Email?By: Todd Nectoux Think back to your last construction project and imagine what it would have been like if you did not have email. Obviously, communication and documentation on a construction project have been greatly enhanced by email, voice mail, PDAs, laptops and other technological advancements. These enhancements in communication and documentation are also impacting construction litigation. The Texas and Federal Rules of Civil Procedure require a construction company, if properly requested, to produce all electronically stored information (“ESI”) that is relevant to the litigation. It is important to note that ESI is much more than just email and includes, amongst other things, data, documents, databases, email attachments that are created, received and/or stored on such electronic devices as computer work stations, PDAs, laptops, personal home computers, voice mail systems, back-up tapes, e-mail archiving systems, content management systems, software programs, old computer systems, CDs, floppy disks and flash drives. Yes, if a construction company gets involved in a lawsuit, it is quite likely that the email (and other ESI) created by that company’s employees and representatives will be obtained and reviewed by the other parties to the lawsuit. Consequently, construction companies need to consider establishing guidelines on how its representatives and employees’ create email (and other ESI) and how such email (and other ESI) is retained. The following is a very brief synopsis of factors that should be considered when establishing these guidelines. Creating Emails
When creating email (and other ESI) on a construction project, construction company representatives and employees need to understand that if the company gets involved in a lawsuit over the project, their emails (and other ESI) can be obtained and used against the company. Here are a few suggestions. Treat all construction project email, even internal email, like normal business correspondence. Do not include potentially embarrassing personal information and opinions in construction project emails. Do not include unnecessary negative comments about other persons and companies in construction project emails. Instruct representatives and employees to review the content of email before sending it. Retaining Emails
Construction companies should implement an ESI retention system that routinely preserves (and later discards) the company’s email (and other ESI). While there are numerous business reasons for implementing an ESI retention system, there is also an important legal reason: Avoiding Court Sanctions. Courts will impose sanctions on a construction company that anticipated (or should have anticipated) a lawsuit but failed to retain all documents relevant to that dispute. The same rule applies to email (and other ESI) and courts no longer excuse ignorance on how to collect and retain emails (and other ESI). Sanctions for failure to retain email (and other ESI) can be expensive and severe. For instance, if a company involved in a lawsuit failed to retain relevant email, a court can instruct the jury that the non-retained email contain facts that are detrimental to the company’s claim/defense in the legal dispute, which could result in defeat at trial. Establishing an ESI retention system does involve labor and equipment costs and can be expensive. However, the goal for the ESI retention system should be reasonableness, not the retention of every email (and other ESI) ever created, sent or received. As a general rule, courts will not be inclined to sanction a construction company that has, prior to anticipating a legal dispute, discarded email (and other ESI) in the routine operation of its ESI retention system. However, once a dispute arises, a construction company must take steps to immediately stop discarding relevant email (and other ESI) to avoid sanctions. Here are a few suggestions. Identify all company employees and devices (laptops, PDAs, etc) involved with construction project email (and other ESI). Educate representatives and employees on the how to retain email (and other ESI). Get input and assistance from your information technology (“IT”) personnel. Seek outside IT expertise on creating an ESI retention system. Get input from your attorney regarding how to best operate the ESI retention system to meet your litigation needs and to determine what email (and other ESI) needs to be retained for present and future litigation.
Todd R. Nectoux is an associate at Thomas, Feldman & Wilshusen, LLP. (“TF&W”). TF&W practices construction law and represents all segments of the construction industry in mediation, litigation, contract formation and revision and perfection of mechanics liens and bond claims. Mr. Nectoux may be reached by telephone at (214) 369-3008 or by e-mail at tnectoux@tfandw.com. Find out more about Thomas, Feldman & Wilshusen, LLP at www.tfandw.com. |
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