Contractors are now accessible 24/7 via email, whether through desktop computers, laptops, tablets or cellphones. Email has become such an important part of the workplace that recent studies show the average worker receives more than 120 emails per day, and the average project manager on a construction project will spend more than three hours per day reviewing and preparing emails.
Even though emails are such an important part of a contractor’s daily responsibilities, few companies devote the type of training and education that is appropriate given the daily impact and import of emails. Instead, the tendency is to treat emails as less formal, which derives from constant access and their instantaneous nature. This is a mistake. Email communications should be treated in a similar manner to any other key workplace policy, procedure or tool. It is important to consider establishing clear policies and procedures regarding the use of email during projects and consider implementing training and instruction, and developing policies and procedures for the project team on how to communicate effectively.
The Import of Emails
Construction projects frequently involve the electronic exchange of project information, whether via email, electronic submissions or electronic databases such as Procore or Prolog. Most construction contracts now recognize this and provide for the retention and exchange of electronic files, as well as notice via email. In fact, most of the AIA standard form contracts recognize electronic files and provide for notice in electronic format. Contractors are increasingly becoming paperless because it is more efficient and instantaneous.
Efficiency is not the only vital feature of electronic communication. Electronic communication, and in particular emails, are historical logs of what occurs on a project. Whether it is through an email, meeting minutes, daily logs or other formats, electronic communications show what is occurring on a daily basis on a project and records these activities for well after a project is over. This is why emails are so vital today in construction litigation.
The Federal Rules of Civil Procedure were amended in 2006 to more fully address the rights and obligations of parties relating to the discovery of electronic records. State laws have since modeled themselves after the Federal Rules of Civil Procedure or state courts have issued opinions setting precedent for how e-discovery (the discovery of electronic records) shall be governed in a company’s home state. This is important because attorneys are more equipped than ever at searching for and collecting emails composed during a project. Indeed, there are numerous platforms now that allow for the searching of thousands or more emails and allow for attorneys to search by keywords, custodians, date ranges, subjects and other identifiable information. Contractors can be certain that opposing counsel in a case will look for and try to use any external or internal communications relating to the project. Whether such communications are discoverable depends on the facts and circumstances of the case but, if it is relevant and not privileged, there is a high probability that opposing counsel will get his or her hands on it.
Because of these factors, it is imperative that contractors understand how to communicate effectively on a project. Here are some important points and suggestions to keep in mind when developing a company policy regarding emails, training employees on emails or simply drafting an email.
Avoid Self-Criticism
A common theme in project emails, especially internal emails, is self-critical comments of one’s own work or the team’s work. While “lessons learned” and self-critiquing is beneficial for professional growth, it can be harmful in litigation or arbitration. Contractors can be certain that such email communications, if discovered by opposing counsel, will be used against them in litigation or arbitration.
Avoid Foul Language, Sarcasm, or Humor
This should be obvious, but it is a rule frequently violated. Email messages with foul language, sarcasm or humor do not always resonate years later in litigation. By using foul language, sarcasm or humor, a sender could lose credibility in the eyes of a judge, arbitrator or juror. Further, it is not uncommon for opposing counsel to try and use such emails to incite or rattle a deponent or witness. Never draft an email that might later warrant an apology because of the rudeness or crudeness of the prose.
Facts, Not Feelings
Employees are human and sometimes want to project their feelings and emotions in their email communications. It is almost always better to leave emotions, feelings, legalistic and antagonistic language, judgmental comments and personal attacks behind. Used properly, email communications can be a tool to document significant events or discussions on the project. If necessary, the emails can then become proof in litigation or arbitration of such events or discussions. In order to best utilize this tool, project managers and other employees need to focus on the facts of what actually happened. If the email includes heated emotions or feelings, it is good practice to walk away from the email without sending it and then read it hours later. Walking away from a hastily drafted email may provide the drafter with a new perspective and give the drafter the opportunity to prepare a more accurate and useful project record.
Have a Supervisor or Manager Review Prior to Hitting Send
If the communication involves a significant project event, a contractor should almost always have another set of eyes review the communication before it is sent. This practice will provide the drafter with a new perspective on the event and the communication, which could provide additional information that the drafter overlooked or did not consider.
Keep Emails Professional
Too often in discovery, attorneys find email communications that are unprofessional and inappropriate for the work place. Even though these communications may not be relevant, the communications could still be discovered and used in litigation. It is very common for internal disputes or employee’s personal matters and communications to mistakenly get caught up in the discovery process. If the communication is project specific, drafters should think of writing an email in the same context as writing a letter. It should be just as formal and professional. Additionally, avoid using all caps or explanation points as it could be viewed as yelling and try to avoid using quirky email backgrounds, odd fonts or philosophical quotes.
Stay on Topic
Email communications should always be limited to a singular project. They should not include other related projects, personal matters or other off-topic items. A contractor can avoid unrelated matters being discovered in litigation or arbitration by adhering to this rule.
Set Up Policies and Procedures for Potential Litigation
All contractors should have company policies and procedures for electronic document retention. Depending on the venue of the dispute, discovery rules may impose an affirmative duty on a contractor to preserve all relevant documents once the contractor reasonably anticipates a claim or dispute may arise.
As such, a company’s record retention policy should, among other things, address the storage, retention and disposal of electronic records, designate appropriate individuals with primary responsibility and accountability for proper storage, retention, location and collection of electronic project records, and consider limiting permissible storage locations and sources of electronic records (such as a shared file or single project database).
A contractor should also immediately consult with its in-house counsel or its construction lawyer once litigation is anticipated. Litigation hold procedures may need to be implemented by counsel to ensure retention of project records. Electronic communications exchanged during the project, if in anticipation of litigation or directly with the attorney, may also be considered work product or attorney-client privileged, protecting those communications from production in litigation or arbitration. Consulting with in-house counsel or a construction attorney should assist with identifying what communications should be protected.
Think About Internal Records that May Be Discoverable
Lastly, all contractors should consider the type of internal records that may be discoverable during litigation. For example, “lessons learned,” risk registers, executive-level meeting minutes and the other internal records may be discoverable if a project becomes embroiled in litigation. If such documents are prepared with in-house counsel’s advice or they contain communications in anticipation of litigation, the records may be protected and should be given particular attention in any document review for production. Project executives should also make sure that such documents include an accurate portrayal of the events taking place on the project rather than speculation and guesswork.
