Maintaining and archiving your file
Is your electronic project file no more than the outlook email system “in box” and “out box” instead of a properly structured electronic system with dedicated folders and sub folders?
A problem with the “in box” and “out box” system or lack of system, is that often there is no relevant subject heading to the emails, or you simply add to a lengthy email chain when sending an email. This makes it difficult to find specific documents and sometimes requires lawyers to trawl through large amounts of emails to find the relevant document. The “in box” and “out box” system can lead to sloppy paperwork.
Folders help both consultants and lawyers navigate through project files. Set up relevant folders such as engagement letters, schematic drawings, design development drawings, client communications, site meetings, design meetings etc. Maintain a discipline of filing documents and communications in the relevant folder.
If you operate both an electronic file and a hard copy file on a project, you should scan hard copy documents, so they become part of the electronic file. This will ensure that the electronic project file is complete. Keeping separate hard copy documents and separate electronic documents makes reviewing the documents time consuming and costly.
You may lose project documents because either there has been a computer malfunction or more commonly because you have changed computer system or software and can no longer access archived material. Defending a claim without documents is undesirable and may expose you to unwarranted risk. Electronic files should therefore be backed up on a separate and current hard drive device.
When staff leave your employment, make sure that they don’t take important documents with them. Make sure you have all relevant passwords they may have created and that their project emails and texts are not deleted.
Aconex (or similar) project specific databases are often used on large projects. These databases are usually set up by the project builder. Where most of your project documents are stored on a database and the project ends, you should make sure you retain access to the database or alternatively keep your own separate copy of your documents and relevant communications.
You should retain your project file for at least 10 years after completion of the project.
Email chains are problematic. If documents need to be produced in hard copy, email chains result in excessive paper production. Email chains can sometimes have long histories and sources. Forwarding an email chain runs a real risk of a privacy breach when the chain includes an imbedded email that may not have been intended for general circulation.
You should commence a new email for each communication. The email should have a relevant subject heading and be filed and stored in a relevant folder.
When saving or archiving emails, make sure to maintain attachments and the connection between an email and its attachments. Some archive systems store emails without attachments or store emails and attachments separately. It is important that the entire communication can be retrieved including all attachments.
You should carefully consider the contents of internal emails. There is a tendency in inter-office emails for colleagues to be too casual and loose with their language and their thoughts. In a legal proceeding, these communications are discoverable and must be produced to the other parties in the dispute.
Write it down
Telephone discussions should be recorded in a file note. Contemporaneous file notes can be very important and crucial evidence in a dispute. The quality of this type of evidence is enhanced if it has been saved electronically because it cannot later be alleged that the note was manufactured after the event.
Always confirm instructions/directions/advice/meetings/discussions in writing. An email to the other parties confirming what was said is enough and relatively easy to organise and store for later reference.
One wise lawyer when asked by a client what was required to win cases said: “Three things”. “What three things?” responded the client. The lawyer replied: “Documents, documents and documents.”
Assisting panel lawyers
Handling and management of paperwork, particularly your files represent a significant portion of claim costs. Maintaining an ordered file from the outset can save headaches (and costs) if the project ends with a dispute. Lawyers appointed by your insurers will require a copy of your file. When you receive such a request please take the time to:
– Ask the appointed lawyer by when they need the documents and explain the time you may require preparing the documents.
– Make sure all documents are collected from all likely sources. Consider emails, diaries, logbooks, drawing registers, social media, mobile phones etc. Don’t proceed on the basis that the file is in one place.
– Place the material in a logical order. Group like documents together and then collate them in chronological order.
– Of course, if proper file maintenance practices were observed, then there will be little need to “prepare” the project documents for handover.
– Highlight or tag important documents that you wish to draw to the attention of the lawyer. These documents can be discussed at future meetings.
– Advise the lawyer of other sources of relevant documents that may not be accessible to you, such as on Aconex.
Sarah Metcalfe & Adrian Sella
Clyde & Co, Lawyers