As part of Nextpoint’s Construction Litigation series, this post – originally published on The Dispute Resolver, the ABA Construction Forum’s blog – features insights from Nextpoint Law Group‘s Brett Burney on three major data challenges in construction disputes. From mobile collections to project management software, get practical guidance to build a smarter discovery strategy.
Construction litigation isn’t going anywhere, and the 2023 report from Arcadis found the average value of construction disputes in North America rose 42% in 2022 to $42.8 million, which is the highest it has ever been. The report found that most parties prefer an early resolution to these disputes, which is more feasible than ever thanks to software and technology advancements that allow for faster analysis of huge document sets. This highlights the importance of having a trusted document review platform that legal teams can rely on for accurate searching and secure storage in these complex matters.
Data collection can be the most complex and technically rigorous of all discovery phases. It involves the extraction of potentially relevant electronically stored information from its native source into a separate, secure repository for review. Construction litigation creates unique challenges when it comes to managing data, and it’s essential to plan ahead and understand potential roadblocks to ensure a smooth discovery process.
In this post, we’ll share the three primary data challenges we see customers face in construction litigation. Thinking through these challenges at the collection stage will minimize issues as you head into document review and production.
1. Large Data Collections
Electronic evidence in litigation continues to grow, and construction disputes see some of the largest collections due to the wide variety of data sources and information at play, including:
- Text messages & chat programs
- Virtual meeting recordings
- Document control systems
- Images & drone footage
- Project databases
- Schedules & timelines
- Change orders
- Bidding materials
- Estimates and cost reports
- Payrolls
Additionally, while most of this evidence is already in electronic form, there are usually a good amount of paper documents that must be digitized so that they can be searched and sorted more easily.
While you can’t ignore the seemingly never-ending sources of potentially relevant data, you can be strategic on how to identify, target, and collect the data. The goal is to avoid over-collection by taking the time to reasonably identify custodians and sources rather than blindly casting a wide net.
It may be prudent to identify certain data sources that will be preserved but not yet collected until you have more information on the matter. You could also consider collecting or producing data on a rolling basis, starting with the most relevant sources first, then moving on to less critical groups. That’s a reasonable approach that can help keep costs lower, or at least spread them out evenly.
Another option is to consider using data filtering and analytics tools such as deduplication, near-duplicate grouping (similarity scoring), clustering, etc. These tools can help your team get to relevant data more quickly and reduce the need for a time-slogging manual review, saving time and money and avoiding frustration.
Tackling a complex construction case?
An efficient collection process should be comprehensive without being over-inclusive. Start with our eDiscovery Collections Best Practice eGuide, which shows you how to mobilize cross-functional teams to ensure time- and cost-efficient ediscovery collections.
2. Images and Videos from Mobile Devices
Another growing ediscovery challenge in construction litigation is the massive quantity of images and videos taken with mobile phones and devices. Almost everyone on a construction project has a mobile device, and it’s easy to quickly snap a picture of a crack or measurement for later reference or to share with the team. There could be dozens of mobile devices with thousands of images and videos that could be highly relevant to a dispute. Collecting images from all those mobile devices can be a chore, and the options for collection range from self-taken screenshots to professionally captured forensic images. Text messages and other communications on the cell phones may need to be collected as well.
It’s critical to have a solid plan for collecting images and videos from mobile devices, since you want to make sure you collect all of the associated metadata, including any GPS information (something that is not possible with screenshots, for example). This information can be useful for authenticating the subject matter of the media. Plus, remember that the images are not inherently searchable, so having this additional metadata, including dates, timestamps, and location information, can be helpful in sorting and filtering the images and videos. (You can also make images searchable with AI image recognition tools, like those featured in Nextpoint EDA.)
3. Specialized Software for Timelines and Project Management
Lastly, the construction market often uses specialized and proprietary software to monitor tasks and keep the project on track. Most document review platforms are not capable of viewing this information in its native database format, so the pertinent information is often exported as reports in PDF form or another more static format. Those exports can be loaded into a review platform, but it’s important to consider exactly what information will be most helpful so that the exports can be more targeted.
In addition, there might be important recordings of online meetings from Zoom or Microsoft Teams that need to be collected and reviewed. It’s important to know under whose account these meetings may be stored, what formats that they can be retrieved in, and if a transcript is available along with the media recording.
While there always complicated challenges involved with any litigation matter, these are some of the more prominent areas where we see frustrations from our customers. At Nextpoint, we have experts that can help make sure you’re thinking about every option so you can successfully overcome the challenges in your own construction disputes.
Bonus: Questions to Devise a Collection Strategy
Here is an excerpt from our ediscovery collection checklist to help you think through important questions as you develop a data collection strategy.
- How many parties are involved?
- Who are your key custodians and where are they located?
- Do any identified custodians have direct IT resources available?
- What are each custodian’s key sources? (e.g. email, phone, tablet, company server, etc.)
- Do you anticipate the authenticity of any evidence may come into question during the course of your matter?
- Is there a priority hierarchy that can be created from all identified custodians and their respective sources?
- Are there any parameters to be applied at the time of collection? (e.g. date range)
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