White Christmas


I’m dreaming of a White Christmas…

My children have been making paper snowflakes for several weeks now; and in the spirit of recycling some sport discarded pleadings and memoranda on the back side which was the inspiration for this Christmas post.  Although we strive for a paperless office, documents still remain king in litigation and too often I am surrounded by banker’s boxes and reams of white paper.

I often tell my clients “He who has the most documents wins.”  It is an unfortunate fact that judges and juries tend to trust what they can read in black and white.

Documentation is an important aspect of any project – and in the event of a claim or lawsuit the quality of your documentation can go a long way in assisting your case.

Memories fade, either because the project lasted many years, was many years ago, or because employees have left the company.  Documentation is essential to establish contractual notice provisions were satisfied, justify cost overruns, change order costs, explain delays, etc.

Unfortunately, the volumes of documents associated with a construction project can also be one of the most expensive and unpredictable aspects of a lawsuit.  A thoughtful, well written document management and retention policy can provide an effective way to control the amount of documentation created on a project and subsequent costs.

Electronic documents like e-mails, texts, and spreadsheets can be especially troublesome because they are so easy to produce, reproduce, and because they can be stored in many locations at the same time.  Not all information must be saved; just the right information.  A company should have a written information management and retention policy distributed to all of its employees that encompasses not only paper documents but also electronically stored information (“ESI”).

ESI:  Under Federal Rules of Civil Procedure (“FRCP”) 34, ESI is discoverable if it is “stored in any medium” from which it can be obtained “either directly or, if necessary, after translation… into a reasonably usable form.”  Indeed, more and more, judges are compelling the production of texts in civil litigation.

There are many ways to control the amount of information/documentation created on a project.

1.Encourage verbal communication.
especially if they have a particularly sensitive topic to discuss.  Face-to-face communications can usually resolve issues more quickly than multiple written communications.
2.Develop a policy on the use of texts.
Perhaps even precluding the use of texts related to a project.
Mandate where texts that are sent and received by employees are held, and what happens to those messages when they are removed from a device.
3. Partition your worlds.  Keep your business phone strictly business and your personal phone strictly personal.  By clearly separating the two worlds, you increase the likelihood that a court will not force you to produce your personal communications. This can apply to texts, emails, or social media communications. Do not forward any work documents to your personal email. This simple step could save you from giving access to your entire personal email account, chat records, etc.

4. Limit internal emails regarding a project (see #1), or;
Assign each project a alpha-numerical descriptor and require every email that is sent be sent by carbon copy to a project file for safekeeping (and only the official project file will be retained);

5. Adhere to formalities.
Issues relating to the performance of the contract must be written on letterhead and sent by facsimile or overnight mail only (with carbon copies to the project file to be retained);

6. Prune judiciously.  
Have a written destruction policy, and adhere to it.  For example, set a timeline for how long project files will be retained after completion of a project and notify the client of the deadline.  If you choose to shred documents after a project (to save space) consider retaining a complete imaged file for at least the period of limitations for a lawsuit.

Some of the Policy could be incorporated into the project contract.

Any Policy should also contain provisions regarding the preservation of documentation should a dispute arise.  When a company becomes party to a lawsuit employers must ensure preservation of all information within the possession of the company devices, just as they would for any other type of ESI. Companies must inform employees of litigation holds as well.  If a party destroys relevant documents/ESI after it had notice of a dispute, the Court may impose penalties against the party!

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