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 rewrites, difficult conversations and, ultimately, contract disputes<\/a> occurring are even more likely.<\/p>\n 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<\/a>, and by Mail Manager<\/a>, in a webinar we recently hosted.<\/p>\n Taking a proactive approach to project management<\/a> 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.<\/p>\n However, many businesses across the architecture, construction and engineering industry are currently lumbered by a number of inefficiencies, such as:<\/p>\n An important mantra to adopt when addressing these productivity shortcomings is \u201cdocuments win disputes\u201d. Before any dispute gets anywhere near a courtroom, documents play a huge role in the litigation process. That\u2019s because both sides of a project dispute must present all of the relevant documents in order to prove their argument and enable the other side to fully understand the case.<\/p>\n 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\u2019s 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.<\/p>\n 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\u2019 questions in a timely manner.<\/p>\n Unfortunately, many businesses don\u2019t think about how important documents are until they come to make a claim. And by that point, it\u2019s too late.<\/p>\n There\u2019s a common saying in law that states: \u201cIf it\u2019s not in a document, then it didn\u2019t happen.\u201d This is crucial for all businesses to remember, regardless of whether they are currently involved in a project dispute,\u00a0and the absence of even a single key document could result in that business finding itself on the wrong end of a legal dispute.<\/p>\n 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\u2019t have the required documents to prove their case. Frequently, a party has a strong case but can\u2019t support it with documents. Where this happens, and there\u2019s 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 \u201cboth sides lost\u201d.<\/p>\n 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.<\/p>\n These steps could be seen as trivial but they can be vital if a project 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.<\/p>\n In addition to the importance of documenting project information, it\u2019s 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 \u201cultimate\u201d limitation period.\u00a0Those 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.<\/p>\n One of the biggest underlying causes of poor document management<\/a> practices is that employees believe they have more important jobs to do. They will frequently say \u201cit\u2019s not my job\u201d 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.<\/p>\n Employees often don\u2019t 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\u2019 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.<\/p>\n The onus is therefore on the business to set standards for employees\u2019 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.<\/p>\n 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.<\/p>\n It\u2019s 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 project 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.<\/p>\n Nowadays, litigation is digital and every business needs to be able to confidently say: \u201cI can go and find that specific email for you straight away.\u201d 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.<\/p>\n 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.<\/p>\n 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 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.<\/p>\n Email is the most-used form of project communication but is also the one thing that every employee tends to manage differently. That\u2019s 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 subfolders in Outlook, creating rules that automatically move emails or simply leaving them in their inbox.<\/p>\n What\u2019s 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\u2019s not there. That\u2019s 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.<\/p>\n To prevent this, businesses need to ensure that emails and documents are organised consistently and that important correspon\u00addence 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.<\/p>\n Managing email consistently can help to avoid project disputes that arise out of comments such as \u201cthis isn\u2019t what we agreed\u201d, \u201cwhen did you tell us this?\u201d, \u201cyou never sent us that\u201d or \u201cI wonder if we have sent that?\u201d And it was these common situations that led to the creation of Mail Manager\u2019s technology.<\/p>\n Mail Manager is a Microsoft Outlook add-on that was first engineered internally by Arup Engineering around 10 years ago. The company\u2019s 16,000 employees were all managing email<\/a> in different ways, if at all. Indeed, more than three-quarters of project information was contained in emails but wasn\u2019t linked to projects or folders \u2013 instead, it was locked inside employees\u2019 email inboxes.<\/p>\n 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.<\/p>\n 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\u2019ve 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.<\/p>\n 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.<\/p>\n Mail Manager contains a powerful search functionality that saves staff sanity. As discussed above, project managers are busy and don\u2019t 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.<\/p>\n 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.<\/p>\n In the event of a contractual or project 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.<\/p>\n For more insight from Graham Brown and Mail Manager on this topic watch the webinar here<\/a>. And to discover how Mail Manager can improve your business\u2019 document management processes and help you avoid potential legal disputes\u00a0sign up for a free trial now<\/a>.<\/p>\n <\/p>\n <\/p>\n Michele D\u2019Andrea-Rodrigues<\/strong><\/p>\n Mail Manager Limited<\/p>\n Tel: +44 (0) 20 7755 4970<\/p>\nA proactive project management approach<\/h3>\n
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Documents win disputes<\/h3>\n
The dangers of not being prepared<\/h3>\n
Why are businesses unprepared?<\/h3>\n
Other common reasons for businesses being unprepared to provide documents in the case of a legal dispute include:<\/h4>\n
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Best practices for effective document management<\/h3>\n
The role of email in disputes<\/h3>\n
How Mail Manager eases document management<\/h3>\n
In addition to preventing email from becoming locked in peoples\u2019 inboxes, Mail Manager also helps to solve common issues such as:<\/h4>\n
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