Technology’s Impact on the Legal Process
10/23/2015 | Construction Blog
Technology has become a huge part of the construction industry. This trend ranges from simple things like the use of email to make project communication easier to the introduction of more advanced technologies like Building Information Modeling, or BIM. While these developments have had a predominately positive impact on the industry in terms of quality and efficiency, technology has also resulted in increased obligations in the legal process. Construction businesses should understand a few of the basic ways technology has impacted the legal process, because a failure to do so could prove costly if litigation ever ensues.
The primary concept to understand is that nothing is ever deleted. Even when a piece of electronic data is deleted from the computer system, it leaves a marker of sorts behind that allows forensic experts to locate it later if required. This also applies to documents like letters and memoranda that are commonly edited through multiple versions. So don’t assume it’s gone just because you altered the text or deleted the email.
Second, a company has an obligation to maintain electronic records as soon as it is aware that litigation is a possibility. And this means all electronic records relating to the project. The rules do not permit a party to a case to determine what it does and does not consider relevant. If electronic data is not produced it could result in adverse inferences at trial or other sanctions which could severely damage a case.
Third, the Rules of Professional Conduct have recently been revised in many states to place an obligation on lawyers to understand technology generally, have a clear understanding of how a specific client’s technology works, and to take affirmative steps to protect and maintain electronically stored information (“ESI”). These same rules make lawyers responsible to make sure privileged and confidential information is not turned over with ESI. Even an accidental disclosure could create a problem. For these reasons, lawyers can, will, and should be extremely thorough when it comes to technology and electronic discovery. Clients often grow weary of this; but they should understand the lawyer is on the hook for the client’s potential mistakes in this area and therefore needs to take great care to protect both the client and the lawyer.
For these reasons – and many others – construction companies should give consideration to evaluating how they handle ESI and, where appropriate, engage the help of a qualified professional to ensure proper technology and protocols are put in place to protect the company in the event a dispute arises. This also falls directly into the realm of having a good records retention policy that will help a company manage its day to day operations better. It’s a good idea to undertake this effort sooner rather than later, as catching up will just be more difficult as the technology becomes more advanced and the use of that technology becomes even more pervasive.
For a related article on ESI and what can happen when the rules are not followed, click here.