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The power of documents in a project dispute

9 July, 2020

Projects can easily be affected or delayed by amendments and scope changes at the best of times. But in these uncertain times surrounding the COVID-19 outbreak, the chances of delays, contract re-writes, difficult conversations and, ultimately, contract disputes occurring are even more likely.

This is particularly the case in the construction industry, where ineffective document management processes and solutions can easily lead to costly legal disputes. To explore this issue further, we summarise some of the insights provided by Graham Brown, a Partner at Canadian law firm Cassels, Brock & Blackwell LLP, and by Mail Manager, in a webinar we recently hosted.

A proactive project management approach

Taking a proactive approach to project management can save huge amounts of effort, keep parties out of the courtroom, and ensure a higher degree of success in potential cases. This is reliant on keeping a record of all project agreements, any changes in project specs, and retaining all correspondence both incoming and outgoing.

However, many businesses across the architecture, construction and engineering industry are currently lumbered by a number of inefficiencies, such as:

  • Project managers not fully understanding contracts
  • Change control being open to interpretation and information frequently being tracked informally
  • Businesses have less visibility but more risk than ever

Documents win disputes

An important mantra to adopt when addressing these productivity shortcomings is “documents win disputes.” Before any dispute gets anywhere near a courtroom, documents play a huge role in the litigation process. That’s because both sides of a dispute must present all of the relevant documents in order to prove their argument and enable the other side to fully understand the case.

The reality is that when judges are presented with two different stories, they look for evidence that goes beyond oral testimony and provides documented proof. It’s therefore crucial for business to ensure that everything is documented, from contractual motives and change directives to site condition agreements, invoicing and progress draws, and prompt payment notices.

Businesses need to know what their contractual terms are, where their contract is, and where they can find documents that may underlie that change. They also need to be able to access this information and collate it quickly to submit their request and respond to consultants’ questions in a timely manner.

Unfortunately, many businesses don’t think about how important documents are until they come to make a claim. And by that point, it’s too late.

The dangers of not being prepared

There’s a common saying in law that states: “If it’s not in a document, then it didn’t happen.” This is crucial for all businesses to remember, regardless of whether they are currently involved in a dispute.  and the absence of even a single key document could result in that business finding itself on the wrong end of a legal dispute.

Bad cases can sometimes win and good cases can sometimes lose. And more often than not, the reason for a good case losing is that the parties don’t have the required documents to prove their case. It’s frequently the case that a party has a strong case, but can’t support the case with documents .  Where this happens, and there’s conflicting testimony, the court is likely to prefer the case supported by documents.  If neither side has any supporting documents, courts often reach decisions where one might feel that “both sides lost”.

Therefore, any time an agreement is reached on-site, it should be recorded in an email or other document that states what was agreed and when. This step ensures the business has a record of the agreement that can be used as proof at a later date.

These steps could be seen as trivial, but they can be vital if a dispute arises. Missing a limitation period or contractual notice period could mean that a business loses its claim.  Similarly, getting deep into litigation due to a lack of documents will results in a risk of substantially increased legal fees.

In addition to the importance of documenting project information, it’s also vital to retain that data. There are many cases where businesses have been sued for latent defects well after the initial two-year limitation period has expired, but within the “ultimate” limitation period.  Those cases can survive, because of the latent nature of the defects.  A company making the incorrect assumption that it could destroy documents after two years could be left without any evidence about the project, and no way to guard against the allegations in the litigation. You might say that it is no use carefully documenting a project if the documents are destroyed before they are needed. Although every jurisdiction has different business document retention rules, a reasonable approach in Ontario could be to retain project data for at least 15 years after project completion.

Why are businesses unprepared?

One of the biggest underlying causes of poor document management practices is that employees believe they have more important jobs to do. They will frequently say “it’s not my job” to put documents in the right place and ensure all of their emails are filed how and where the business wants them to be stored.

Other common reasons for businesses being unprepared to provide documents in the case of a legal dispute include:

  • People being too busy
  • Employees filing documents in their own way or into folders on their desktop
  • Businesses not having systems in place for filing emails to a specific location
  • Employees thinking it’s not important to file emails in a specific location
  • Businesses not having the right technology in place
  • Intentional or automatic destruction of emails and documents

Employees often don’t consider the effect that their actions could have down the line when their company ends up getting sued, or a supplier refuses to pay them. For example, construction businesses’ project managers will frequently say they are too busy or too focused on other tasks, such as on-site work, to also manage the tedious process of filing emails or searching for documents they sent five years ago.

The onus is therefore on the business to set standards for employees’ roles in creating and preserving documents.  Among other things, it is recommended that businesses update their destruction of document policies, and implement technology to help their employees comply with the new rules.

Best practices for effective document management

The different types of documents that a lawyer might require for litigation form a lengthy list. The tip of the iceberg is the contract itself,  supplementary conditions, procurement documents, bids, quotes,estimates, drawings, specifications, requests for changes, photos, videos, emails, letters and text message correspondence.  The list goes on, and often includes almost every document created or maintained during the course of a project. It is therefore best practice to document everything pertaining to a project and store all documents created or received carefully.

It’s also important to have a best practice for how and where documents are retained and how long they will be kept for. This will help people to quickly find the information they need in the event of a dispute and prevent information from getting lost when an employee leaves the organisation or if they happen to be on holiday during a dispute. Employees also need to understand the reason that documents are required in the event of a company becoming the subject of a dispute.  When employees understanding the importance of their actions, it typically results in better buy-in from staff.

Nowadays, litigation is digital and every business needs to be able to confidently say “I can go and find that specific email for you straight away.” To do this, they need to ensure that documents are stored in the right location, can easily be discovered by anyone who needs access to them, and can be exported without it taking days to download the data.

A dispute can often be settled long before the case gets to an expensive trial or even oral examinations. Businesses that have better documents will fare better in disputes.

The role of email in disputes

The construction industry has a long-held myth that emails are not important. In fact, emails often play an important role in recapping important agreements, and can even act as as the formal record of an agreement or amendment.  Many businesses do not realise the importance of emails until they have to go back and find evidence of something that they allege happened.

Email is the most-used form of project communication, but is also the one thing that every employee tends to manage differently. That’s because there are many methods for managing emails, from storing them on a server, shared folders or in the cloud to people setting up their own sub-folders in Outlook, creating rules that automatically move emails or simply leaving them in their inbox.

What’s important is not necessarily the email itself but the information contained within it. And often, when a project manager goes to find that key bit of information, they discover it’s not there. That’s because important information can easily become lost due to the various techniques employees use for email storage, messages get stuck in individual inboxes, or due to duplicated copies eating up space on email servers.

To prevent this, businesses need to ensure that emails and documents are organised consistently and that important correspondence is always managed in the same way. This will minimise the chances of information becoming lost and ensure employees spend more time on fee-earning work.

Managing email consistently can help to avoid disputes that arise out of comments such as: “this isn’t what we agreed,” “when did you tell us this?” “you never sent us that,” or “I wonder if we have sent that?” And it was these common situations that led to the creation of Mail Manager’s technology.

How Mail Manager eases document management

Mail Manager is a Microsoft Outlook add-on that was first engineered internally by Arup Engineering around 10 years ago. The company’s 16,000 employees were all managing email in different ways, if at all. Indeed, more than three-quarters of project information was contained in emails but wasn’t linked to projects or folders - instead, it was locked inside employees’ email inboxes.

This led to employees wasting crucial time looking for key correspondence and resulted in Arup experiencing risk and disputes. The organisation went in search of a solution that would help all of its employees find any email on any project in seconds, without wasting time on filing. And, in the event of not finding one, they built their own.

In addition to preventing email from becoming locked in peoples’ inboxes, Mail Manager also helps to solve common issues such as:

  • Project managers being ill-informed when making decisions
  • Wasted time spent searching and filing emails manually
  • The risk of losing sensitive information
  • Staff being overwhelmed by email overload

Mail Manager uses a simple but highly effective piece of Artificial Intelligence that helps people to file emails to the correct location. It looks at where they’ve previously filed emails, the other people copied on the message, and scans the content of the message in order to ascertain the most appropriate filing location.

The tool also helps organisations to correctly file sent emails. Many companies generally do not file sent emails, yet they are just as important if not even more important than filing received emails when providing instructions on a project. Mail Manager automatically prompts users to file messages to the correct location every time they send an email.

Mail Manager contains a powerful search functionality that saves staff sanity. As discussed above, project managers are busy and don’t want to spend hours or even days digging through their inboxes to find a particular email or document in the event of a dispute. Mail Manager does the hard work for them, and is capable of searching through a million emails to find the results the employee needs in as little as two seconds.

With Mail Manager, every employee in an organisation can now easily file emails and documents in the correct location. It also ensures that any other person in the business can quickly discover that information as and when they need it. This saves people huge amounts of time and helps them to become far more productive on a daily basis.

In the event of a project or contractual dispute, the tool is absolutely vital. A project manager can immediately discover the particular document or an agreement made via email and provide their lawyer with the information they requested.

For more insight from Graham Brown and Mail Manager on this topic watch the webinar here. And to discover how Mail Manager can improve your business’ document management processes and help you avoid potential legal disputes sign up for a free trial now.

The information provided in this blog post is not legal advice. It is important to remember that not every situation is identical, and interested parties should always confer with a lawyer regarding their individual legal issues.



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