The path to an effective e-discovery process
by Brian Schrader
April 29, 2019

In the construction industry, legal disputes are not uncommon. In fact, there are thousands of construction-related disputes filed every year. Design and consultancy firm Arcadis’s 2018 Global Construction Disputes Report found that the top causes for disputes in 2017 were the result of:

  • Failure to properly administer the contract
  • Poorly crafted or incomplete claims
  • Failure to understand or comply with contractual obligations

Maybe you’re thinking, “So what? Most disputes settle anyway.” Well, you’re only kind of right. Per the Arcadis report, 82 percent of construction disputes in North America settle before ever going to trial. However, even matters that settle usually require an electronic discovery process, or e-discovery—the process through which documents requested for legal matters are gathered and provided in electronic form.

Presumably, industry veterans are used to preparing for litigation or a settlement, and they understand it involves compiling multitudes of data. Thousands, sometimes millions, of files are collected as part of the e-discovery process, which often requires attorney review and analysis of files, as well as production of files as needed for arbitration, litigation, settlement discussions and other proceedings. But these disputes take time and effort, especially for companies that have no standard procedure for handling such matters. And attorney’s fees are not cheap.

If you are starting to fear the negative effects a dispute can have on your company, don’t despair. With the proper protocols and technology in place, your company can maintain control of its data to better cope with common disputes, significantly hedging against the costs of complying with those requirements.

Create a Standard E-Discovery Process

For large construction companies with hundreds of employees, it’s easy to lose track of data, especially as the number of data storage locations continues to grow, including email, mobile devices, social media platforms, computers, servers, etc.

The first step to mapping out your data is to determine exactly what exists, where it is located, who has access to it and who created it. This process often includes employee questionnaires and interviews, which provide insight into the aforementioned questions about your data—crucial knowledge should you find yourself entangled in a legal matter you didn’t see coming.

Once you have a strong handle on your company’s data and where it exists, the next steps to creating standard e-discovery procedures and processes involve deciding on the right people, policies and technology:

  • People—Rather than allowing outside counsel to select your e-discovery vendor when a dispute arises, take control and determine who your e-discovery team will be for your company’s legal matters. Determine what roles are needed for your company and who will fill them. An organized e-discovery team and process reduce your overall costs in both time and money.
  • Policies—Establish detailed data-handling policies that meet compliance standards and industry best practices. Then, effectively communicate those policies to employees, contractors and subcontractors. Protocols specifying where to store data, how long to save it and who should have access to it not only decrease the time involved in preparing for a case, but also reduce the risk of data theft.
  • Technology—Determine the e-discovery platform that best fits your needs. Look for a program that is capable of collecting and processing your data. Specifically, look for one that creates legal holds and remotely collects, catalogs and culls down the data. Some platforms also support fundamental data analytics, which kickstarts the process of weeding out irrelevant files. By utilizing the same technology and data sets across all your matters, you can realize substantial cost savings as well.

Don’t wait and wonder if a dispute will emerge. It will. Create a standard process now, saving yourself time and money later. You wouldn’t start a new construction project without well-thought-out planning, and legal matters should be no different.

When you have a clear plan in place, you can stop reinventing the wheel with each new legal issue, create remarkable efficiencies, ensure consistency and, as a result, mitigate risk.

Work Within Established Protocols

Once you have created a framework for a standard e-discovery process, delve into the specifics so that you’re ready for any litigation. This should encompass: 

  1. Legal holds—The first step in any potential litigation is to notify custodians of their obligation to preserve any relevant or potentially relevant information and documents. This process is simplified through an e-discovery platform that allows you to easily manage the process and handle things like automatic email reminders, logging and reports.
  2. Data collection—After a legal hold is in place, you and your e-discovery team can begin collecting relevant data. Make sure your platform allows you to specify what data to collect from each location and can automatically start collecting and processing that data.
  3. Data review—The next step is to review all collected data using a professional review team and a review platform, which carries out a more in-depth analysis of the data and then sorts it by relevance. With the right analytical tools and professional review team, you can easily cut your legal fees by more than half.

Many people assume the e-discovery process stops here, but, in fact, there is one more step that is crucial to maintaining control of your data for the next time a dispute arises: securely hosting data in one database. The data collected throughout the e-discovery process will likely be used again in future situations and shouldn’t just be tossed to the side and re-collected the next time it’s needed.

Rather, implement one platform to host all company data for your legal matters, internal investigations and other such needs, so that when you’re required to collect data in the future, it can be quickly located and easily accessed. This not only provides significant cost savings, but it also helps maintain greater consistency across cases and ensure your critical data remains secure.