In construction disputes, whether in court or arbitration, exchanging documents like project files and emails is crucial for resolving the case fairly. The story behind most disputes is told through these communications, which is why it’s important for contractors, owners, and designers to understand their legal duty to preserve documents, especially in the digital age of electronically stored information (ESI). The preservation obligation kicks in before a lawsuit or arbitration even begins—once it becomes “reasonably foreseeable”—and includes both paper and electronic documents, as well as physical evidence. If evidence is lost or destroyed, penalties can be severe, and businesses should ensure systems that automatically delete emails or files are paused to avoid unintentional losses.

In larger disputes, parties typically create an ESI protocol to streamline the process of collecting and searching relevant data. This process includes agreeing on what data to preserve, how to search it, and ensuring good faith collaboration between both sides. The protocol also involves identifying data sources, using search terms to locate relevant documents, and agreeing on how metadata—important details about when and by whom a document was created—will be preserved. Overall, a thorough document exchange is key to resolving construction disputes effectively, and both the legal team and the client must understand their responsibilities to avoid serious legal consequences. To read the full article, please click here.