In today’s complex construction industry, a single project can have a multitude of stakeholders. Everyone involved in the project from the architects to the owners to the contractors has a lot to gain from a successfully completed building, road, bridge or structure. Unfortunately, each party has a lot to lose if a job is delayed, inspections fail or other issues arise. When this happens, a “blame game” begins and lawsuits often follow. The most prepared organizations are positioned to either win their case or have the best defense. These days, being prepared means keeping an exceptional record of every electronic document, spreadsheet, image and email. The good news is that with the right enterprise content management (ECM) software, storing, organizing and managing documents is easier than ever.
A Basic Strategy
Clearly your company needs a plan to stay protected in the event of a lawsuit. You need a way to file and organize every document and correspondence related to a project. Nowadays, not only is it a smart idea, it’s a requirement, and that “folder of stuff” is the first thing your legal team will ask for. With these items, your attorneys will be able to conduct a legal document review of all project-related documents and email strings. While years ago this was handled with a manila folder drop-off at your lawyer’s office, technology now allows these important items to be stored, organized and transferred electronically.
These days, failure to preserve information can result in sanctions against you. Refer to the following case for example:
In Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd., 348 F. Supp. 2d 332, 333 (D.N.J. 2004), the court imposed severe sanctions against Samsung because of its failure to preserve emails and other information when it was on notice of litigation. Thosesanctions included: accepting evidence presented against Samsung without its ability to dispute it, an instruction to the jury at trial that Samsung had improperly destroyed emails, and monetary sanctions constituting attorneys’ fees and costs associated with attempts to obtain discovery that should have been saved. This case is just one of hundreds across the country in which companies have gotten in trouble for their failure to preserve information electronically.
Minimize Your Risk
The software system most commonly deployed to help avoid major problems is a content or electronic information management software suite. ECM software was essentially designed to aid companies with mitigating risk.
Put simply, content management technology helps companies manage electronically stored information in the face of litigation, arbitration and internal or regulatory investigations. The term most commonly used for organized content management in the event of a lawsuit is e-discovery. Most large contractors have some sort of technology infrastructure for keeping track of important project documents, but small to mid-size companies are often at risk when a lawsuit is presented; in fact, they may cease to exist if the case is lost.
According to George D. Carey and John T. Bergin in a February 2013 article from Construction Executive magazine (Claims, Litigation and E-Discovery Readiness for Firms of All Sizes) “When confronted with unexpected claims, litigation or government investigations, unprepared companies face significant costs to comply with their obligations to produce hard copy and electronic documents.” They added: “Companies of all sizes can proactively prepare for claims and litigation by developing a litigation readiness plan, creating a document retention policy and cleaning up their information with electronic data management software.”
The Power of Electronic Content Management
I’ve seen firsthand the power and benefits a robust content management solution can provide a client in a legal crisis. There is no question that when a client has a system in place, the ability to modify, search and view documents by date is so much easier than trying to gather that information manually. Content management software allows scanning of documents so all your hard copy items can be stored. If an item like a change order is in dispute, you can search for all correspondence related to that dispute – giving your company a distinct advantage. From my experience, other advantages of document management software include the ability to search by a keyword. This means if I’m looking for something specifically stated in an email, I can find it in an instant without scrolling through an endless batch of correspondence.
Media distribution is also a powerful tool in modern content management software. It makes it simple to prepare documents to send to an opposing side in response to a request. The client can run a query in the system for all pertinent data related to a case and automatically put that information on a disc that has a built-in viewer to make searching for particular information an easy exercise.
Shared Access
Getting information quickly is imperative to success when representing my clients. When a software solution can provide me with a login to access the documentation at will, I can prepare for a client review faster. Additionally, any software solution with auditing tools is invaluable. I can say with authority that having auditing tools that determine how and when a document was brought into the system, altered or modified can be a critical feature for proving when contracts were signed, emails were sent, or updates to work orders were authorized. You can’t put a price on the value of a tool that shows a timeline of where and when a document was created and who’s been modifying it.
The Advantages of Organization
When it comes to e-discovery, content management software is a true game-changer. The life cycle management of every project-related document from beginning to archiving is the key to maintaining the evidence to protect your company in a lawsuit. Most modern electronic content solutions are approved under the Federal Rules of Civil Procedure and the ability to search large masses of content across the enterprise make the legal preparation a much simpler and cost-effective process for your legal expenses. If you’re concerned about staying protected or are considering technology to assist in organizing your documents, I highly encourage you to look at integrated content management software. It’s an investment you can’t afford to wait on.
See How Enterprise Content ManagementCan Protect and Organize Your Business
