How To Manage Records In Construction Projects

Transcription

1 Best Practices for Electronic Records Management and Litigation Readiness in Construction Projects James T. Swanson (403) Burnet, Duckworth & Palmer LLP Calgary, Alberta James Swanson, 2002, 2009

2 DISCLAIMER General overview New and evolving areas of the law Subject to rapid technological change Not intended to be exhaustive Many exceptions to the rule omitted May not be applicable in all situations Not to be relied upon as legal, technical or business advice

3 DISCLAIMER This topic is a book we have ~ 45 minutes

4 The Digital Deluge >90% of all records are now digital Many records never exist as paper Many records may never be used Most paper originates electronically The law generally treats electronic records equally with paper Electronic records, if relevant, must be produced (disclosed) in litigation

5 Why Electronic Records?

6 Why Electronic Records? Software is commonly used to leverage efficiencies and manage projects Shorten delivery cycles Reduce costs Increase productivity Better utilize resources Capture necessary information to manage projects comply with regulatory requirements defend against claims

7 Why Electronic Records? Electronic contracting and transactions (both internal and external) now increasingly common Legal regime to enable is generally in place Increased speed of communication Elimination of barriers of space and time Smaller carbon footprint Green IT Cost of IT continues to drop We just can t do without it

8 Why Electronic Records? Software creates electronic records

9 Why Electronic Records? So, if you use software, you ve got records You ve got ESI (electronically stored information) And, you have to deal with it

10 NOT Your Grand Dad's Records

11 Your Grand Dad's Records Paper was simpler All content readily visible Number of formats limited WYSIWYG Generally categorized and indexed for filing or not kept Not dynamic relatively fixed content Copying generally led to degradation Copying was expensive

12 Your Grand Dad's Records Distribution required moving atoms (at least until the fax) Paper did not make copies of itself without your knowledge, nor did it run around and hide from you File cabinets did not talk to each other Once destroyed, it was generally gone recovery not possible Driving to the landfill to recover was rare

13 Not Your Grand Dad's Records Electronic records have qualities that paper does not Content not always readily visible metadata Display on screen one way of looking at the record Printed copy another way of looking at the record

14 Not Your Grand Dad's Records Number of formats large WYSIWYG maybe Very dynamic often cannot be printed or rendered static and make sense Often not categorized and indexed resides all over the place

15 Not Your Grand Dad's Records May be interactive with other e-records, or have relationships that make viewing in isolation problematic May have a recorded history that is not readily visible

16 Not Your Grand Dad's Records Copying does not lead to degradation Copying basically free Records copy themselves without your knowing Your servers, SAN's, etc. (file cabinets) may talk to each other without your knowledge

17 Not Your Grand Dad's Records Deleted? Maybe - a trip to the digital landfill is generally easy Delete does not usually mean delete ignore, for now, until over-written over-written may never occur Distribution - moving bits, not atoms

18 Not Your Grand Dad's Records Formerly discrete and separate domains: telephone calls documents and correspondence photos, images, CAD music, video Now all members of the same family DATA

19 Not Your Grand Dad's Records Examples of electronic records of possible concern in construction Word processing files Spreadsheets Databases AutoCAD Models Input data, output data

20 Not Your Grand Dad's Records Examples of electronic records of possible concern in construction GIS, GPS black boxes, data logger records sneaky cell-phone photos sneakier videos Phone calls VoIP Plus, modern day digital voodoo..

21 Not Your Grand Dad's Records Where e-evidence can be found PCs, Laptops Servers, SANs Backup media and libraries PDAs, cell phones, smart phones, Blackberries Removable media, disks, thumb drives, USB devices Black boxes, GIS, GPS devices PlayStations, I-Pods, WII Televisions, fridges, toasters

22 Not Your Grand Dad's Records Where e-evidence can be found Anywhere you can hide a chip

23 Not Your Grand Dad's Records A lot of information can be stored in a relatively small space

24 Pro-Active Records Management

25 Pro-Active Records Management Primarily, records are kept for business purposes Be careful what records managers call a record may not be from the point of view of litigation Records managers Formal documentation designated to be retained for a specific period of time for a specific purpose(s) is a record A document may be less formal Lawyers If we can see or hear it, and it s potentially relevant, it s a record

26 Pro-Active Records Management Four kinds of records (at least) Records that the law requires you to keep Records that the law requires you to destroy Records that would be advantageous in litigation Records that must be retained for litigation purposes, even if harmful

27 Pro-Active Records Management Risks Destroying records that the law requires you to keep Keeping records that the law requires you to destroy Destroying records that would be advantageous in litigation Destroying records that lead to allegations of spoliation of evidence

28 Pro-Active Records Management It s all about policies Records Management Policy Privacy Policy IT Security Policy and Internet Use Policy Acceptable Use Policy Remote Workforce Policy

29 Records Retention Policies

30 Records Retention Policies KISS - Keep it simple Complex policies will not be understood, read or followed Cross-border operations with multiple legislative requirements need to be simplified and boiled down to the highest bar / lowest common denominator Ultimately, you should have just a few retention periods and not too many categories of documents Beware of flashy consultants

31 Records Retention Policies KISS - Keep it simple No reason why different classes of records cannot have the same retention period so what if the minimum for one is a year longer than for the other? Consider keeping both classes for the longer period. We are talking about record or document taxonomy When you do destroy destroy all records of a particular class pursuant to a pre-defined schedule (subject to litigation hold)

32 Records Retention Policies Be consistent Follow the same policies every time with the same class of records Use the same type of media for all records of a class Back-up tapes are only for disaster recovery Do not have months or years of back up tapes available - recycle Backup tapes are very expensive to restore, but the Court can make you do it if you have them

33 Records Retention Policies Setting retention periods What is the maximum required period under the law? All applicable legislation and regulations must be considered. What personal information do you have and when must it be destroyed? What possible events may cause you to need the record? Plan for all possibilities. Sensitive records should require legal counsel approval to destroy

34 Records Retention Policies Understand applicable law What records are required under the Electronic Transaction Act (or equivalent) to prove transactions, contracts, amendments, etc.? Are you ready for the procedures under the Evidence Act? Laws differ - may not apply in NWT

35 E-Commerce and Electronic Records Legislation

36 Electronic Transactions Act (Alberta) Technology neutral Functional Equivalency Can t force electronic contracting but if parties agree, ETA eliminates legal barriers Electronic records not denied legal effect or enforceability solely because electronic

37 Alberta Evidence Act Onus of proof is on party seeking to introduce electronic record into evidence Evidence Act provides for authentication of records and IT systems Authenticity or integrity of a record can be proved by evidence of integrity of the IT system

38 Alberta Evidence Act In the absence of contrary evidence or reasonable grounds for doubt, evidence that the system was operating properly (or, if not, that the operational difficulty did not affect its integrity) will prove integrity of the system therefore, integrity of the record Evidence by affidavit, with right to crossexamine

39 Litigation Issues

40 Records Retention Policies Litigation Hold When you know, or ought to know, of pending or actual litigation, you have an obligation to collect and preserve potentially relevant records for the litigation This is referred to as a Litigation Hold failure to preserve can be spoliation of evidence Be able to sort records by time frame, location, custodian, division of the company, subject matter, key words, search strings, etc. Policies must deal with this

41 Counsel and IT Need to speak the same language Understand that internal IT may be counsel s best friend or counsel s worst enemy IT wants to be helpful but may not understand their role Important for counsel and IT to discuss the case at its earliest stages

42 Counsel and IT Counsel should use IT for their knowledge of the records systems and the custodians involved Counsel should not use IT as experts in the case Do you really want internal IT doing things that will make them witnesses? How do you tell an extroverted geek anyway?

43 Managing Experts Counsel should consider what is really required Is this really an e-discovery case? Meet and confer with opposing counsel as early as possible decide on the scope of the case, data formats, procedures, etc. Know the case before you go off half-cocked with experts

44 Resources Sedona Canada Working Group 7 Sedona Canada The Sedona Canada Principles Addressing Electronic Discovery

45 Meet and Confer Sedona Canada Principle 4 Importance cannot be over-stressed Discuss Potential sources for e-records Types of data/records to be produced What to do with documents and data outside the records retention policy Appropriate scope temporal, custodial, matterrelated, geographical, etc.

46 Meet and Confer Sedona Canada Principle 4 Importance cannot be over-stressed Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.

47 Meet and Confer Discuss Ways to narrow scope or cost Specific format in which records will be produced Safeguards for accidental disclosure of privileged or confidential information Search terms and strings to be used Timelines and other parameters for preservation under the Litigation Hold

48 Meet and Confer Proportionality see Sedona Canada Principle 2 The courts are beginning to approve and are headed in this direction

49 Meet and Confer In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.

50 Experts Know your case early Assess the value of the case compare that to the estimated cost of experts Give the experts accurate scope and insist on estimates and quotes Make the right people available to educate and inform the experts make it easy for the expert

51 Experts Stay on top of the schedule rushes and emergencies cost more Use a staged approach doing only what is required at the time in conjunction with meet and confer (or case management) Example imaging to preserve evidence does not mean you have to search and look at everything now

52 Preparation for e-discovery Policies, Policies, Policies Good policies: Preserve business records for their useful lives Provide legitimate and compelling explanations as to why a record may no longer exist Limit the number of areas which must be searched for discovery purposes Have the ability to implement a sustainable litigation hold

53 Preparation for e-discovery Consider technical issues Preserve meta-data if required Better safe than sorry preservation Meet and confer with respect to Counsel s role includes educating and monitoring compliance Be aware of privilege issues and avoid waiver

54 Preparation for e-discovery Identify current and former employees, functional groups, etc. with information Involve IT to assist Interview key people and understand the records management processes and the information flows Segregate all potentially relevant data to a separate server use competent IT to preserve meta-data, etc.

55 Common Problems in Construction Documents

56 Common Problems in Construction Documents Failure to document change orders, variations, etc. Ambiguous correspondence text, IM and are often truncated Use of abbreviations and acronyms that are not widely known outside a small group Admissions that should not have been made Revenge of the about to quit or recently fired

57 Common Problems in Construction Documents Lost documents Incomplete inspection reports or forms Incomplete or contradictory change orders Incompatible or changing formats replied to by handwritten note, replied to by a phone call, replied to by an IM, acknowledged by a fax There s a lot to be said for clarity

58 So, who wins?

59 So who wins? In close cases, it may be the party with the best paper trail (electronically speaking) Good and clear records No missing documents No incompatible formats No gaps in the record Policies followed No spoliation of evidence Good records will tell your side of the story completely, accurately and compellingly

60 Welcome to the 21 st Century!

61 Thank you! James T. Swanson