If you’ve ever managed ediscovery for a construction matter, you know it’s a different beast. From seven-terabyte data collections to CAD files your review platform can’t even open, the challenges are real and specific. This construction litigation support guide draws from a recent Nextpoint + EDRM webinar that covered the five most common pain points in ediscovery and how to tackle each one.
Challenge #1: Large data and mobile collections
Construction cases don’t just have a lot of data — they have a lot of unique types of data. Scheduling software, CAD drawings, BIM models, Procore exports, text threads full of job site photos, and more can all present challenges in ediscovery.
When proprietary file types come in, you often can’t preview them inside your review platform. They pass through as unknowns, which means you’re relying on outside experts to open and interpret them, or you’re flattening them into images just so you can produce them to opposing counsel. April Williams, Advanced Certified Paralegal at W.G. Yates & Sons Construction, put it plainly:
“There are many different proprietary pieces of software that are used in construction — from scheduling to modeling software — that a lot of times the ediscovery software cannot read. So it ends up normally being a pass through. I know what it is, I know what the prefixes are. I just can’t look at it.”
Producing those files to opposing counsel creates its own complications — they may not have access to the software needed to open them either, which means the files often end up in the hands of experts just to be interpreted.
Mobile collections add another layer. Text messages and job site photos are critical evidence in construction disputes, but collecting them properly (capturing full threads, reactions, emojis and all) requires a real strategy. Do you need the entire message history or just a specific date range? What format do you want to review messages in? Consider working with a partner experienced in construction litigation support who can help you think through these questions before you collect.
The key to smoother ediscovery is to have one person oversee all collections. It sounds simple, but having a single point of accountability who knows every data source, builds out the folder tree in the ediscovery platform, and keeps a literal checklist, is what separates a defensible collection from a headache waiting to happen.
Challenge #2: ESI Protocols
ESI protocols matter in every case. In construction litigation, they really matter — because if opposing counsel asks for every email containing the word “window,” you’re going to have a bad time. Every project has windows.
“If you’re wanting me to produce every single email in the Yates universe that has the word ‘window’ in it — all of our projects have windows. The only way I can do that is with some sort of limitations on either custodians or timeframes. You have to tie it to the project in some way — project names, project numbers, that sort of thing.” — April Williams, W.G. Yates & Sons Construction
Here are a few things to nail down in your ESI protocols and early conversations with opposing counsel:
Scope and proportionality: Keywords need to be tied to specific projects, custodians, and timeframes. Broad keyword lists in a construction case can generate astronomical result sets that are functionally useless to everyone involved.
Metadata requirements: Agree on the metadata fields early. Yes, it can be adjusted later, but front-loading this conversation saves a lot of back-and-forth down the road. And remember: You can only produce metadata that actually exists on the file. No one can manufacture it.
Threading: More ESI protocols now address email threading specifically — and for good reason. Threading can wipe out a third of your review time by collapsing back-and-forth conversations into a single stream of conversation. Just keep in mind that a threaded email isn’t always the cleanest imagery to put on a screen during trial.
Clawback provisions: Given the sheer volume of documents in most construction matters, inadvertent production happens. A solid clawback provision is a sign of smart planning.
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Challenge #3: Collaborating with internal and external stakeholders
Construction cases tend to have many cooks in the kitchen: in-house legal, outside counsel, multiple experts, project managers, and IT support. Keeping everyone working consistently — using the same tags, the same folder structure, the same coding panel — is what holds the whole thing together.
The person managing the ediscovery platform often ends up as the unofficial first-line tech support, trainer, and institutional knowledge keeper all rolled into one. April described her approach:
“I’ll get questions from outside counsel and I’ll be like, let’s jump on a quick webinar. I’ll jump on a screen share and show them what they need to be doing, what they need to be looking at, how they can find certain things. I will build that entire project file in the platform so they can trace it all the way back to where I got it.”
Experts often only need to see a narrow slice of the database. Sometimes the cleanest solution is spinning up a separate database just for them, rather than trying to lock them out of specific folders. In Nextpoint, creating additional databases doesn’t cost extra, so you can go ahead and get creative.
Challenge #4: Predictable pricing
April’s largest active case sits at nearly seven terabytes of data. Now imagine paying per gigabyte on that…
Construction litigation is a data-heavy practice by nature — photos, videos, CAD files, large PDFs, native exports from project management software. The data never shrinks. It only grows. Traditional per-gig pricing models make it nearly impossible to budget accurately from the start of the case.
That’s why Nextpoint operates on a per-seat licensing model. You pay for users, not gigabytes. No agonizing over whether to pull in that additional PST file because of what it might cost. Just bring in the data you need and get to work.
“Being able to think about it in terms of an unlimited amount of data and an unlimited amount of cases — a flat rate as opposed to this much per gigabyte per month — it was just a no brainer for me as far as being able to minimize our costs.” — April Williams, W.G. Yates & Sons Construction
For teams managing multiple active cases simultaneously, licenses can also be recycled. You’re able to assign one to outside counsel for the duration of a matter, take it back when the case closes, and pass it to the next firm. It’s a model built for the way construction litigation actually works.
★ Read April’s story
Learn how April streamlined ediscovery and saved her firm tens of thousands of dollars each month by making the switch to Nextpoint.
Challenge #5: Presenting complex information to a judge or a jury
The people who decide construction disputes (judges, jurors, arbitrators) are seeing a slew of complex information for the very first time. They haven’t been living inside the project schedule for three years. They don’t instinctively know what a cross-section of a trench looks like, how to read a CPM delay analysis, or what that CAD drawing is even showing.
In addition to gathering and producing evidence, your job is to also make it easy to understand. As Megan O’Leary of Nextpoint framed it:
“The judge and jury are the fact finders — the triers of fact. You have to recognize that they’re seeing it for the first time.”
That means building visuals that walk people through information step by step, not dumping a fully compiled timeline graphic on the screen and hoping they follow along. It means zooming in on the relevant section of a blueprint rather than displaying the whole thing. It means turning a dense financial calculation into a sequential story with each number introduced one at a time.
And sometimes, it means going beyond documents entirely:
“We generally start with photos and then utilize different 3D modeling elements to be able to show things. Once something is modeled in the virtual environment, you can modify the view, change all sorts of different elements — show where the accident happened, what they were doing at a given time. You get a lot more flexibility with being able to walk people through that.” — Megan O’Leary, Nextpoint
Nextpoint Theater view lets you display documents and create call-outs seamlessly during trial presentation. For more elaborate visual storytelling, the Nextpoint services team has construction litigation support specialists who can help you cut through the complexities to build a clear and compelling presentation.
The takeaway
Construction litigation is fundamentally different from other matters. Attorneys must transform a vast sea of complex data and technical minutiae into a compelling story that resonates with a lay audience. But being prepared for potential roadblocks can help you bypass them altogether.
All five of these challenges are manageable when you’ve got the right process, the right people, and the right platform.
Need more construction litigation support?
Watch the full webinar, featuring April Williams of W.G. Yates & Sons Construction, Megan O’Leary of Nextpoint, and Brett Burney of Nextpoint. They bring real-world experience, hard-won lessons, and yes, the occasional horror story about seven-terabyte cases.
