170621 dple to document or not to document - arm rev.pptx ...€¦ · this seminar will provide...
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To Document or Not to Document:That is the Question
DPLE 182
RLI Design Professionals is a Registered Provider with
The American Institute of Architects Continuing Education Systems.
Credit earned on completion of this program will be reported to
CES Records for AIA members. Certificates of Completion
for non-AIA members are available on request.
This program is registered with the AIA/CES for continuing professional education.
As such, it does not include content that may be deemed or
construed to be an approval or endorsement by the AIA of any material
of construction or any method or manner of handling, using,
distributing, or dealing in any material or product. Questions
related to specific materials, methods, and services will be
addressed at the conclusion of this presentation.
Copyright Materials
This presentation is protected by US and International Copyright laws.
Reproduction, distribution, display and use of the presentation
without written permission of the speakers is prohibited.
© RLI Design Professionals
Course Description
When organizing your file after a project is complete, what should you toss, and what should you keep?
Did you ever have a project email you wish you could delete “by accident?”
Did you ever have a project drawing that went out and was later corrected, so you wish you could make the initial drawing “disappear?”
This seminar will provide guidance on document retention policies, covering the laws and rules prohibiting the destruction of evidence including electronically-stored information.
Learning Objectives
• Gain perspective on what to document versus what not to document
• Consider the merits of internal versus external project communications
• Review the basics of a document retention policy
• Understand how the law applies to electronic and non-electronic information
Participants
in this
session will:
Memories fade even when there is
an incentive to remember accurately
Create the Record
The Record
Be objective � State facts only
Do not record opinions or conclusions as to the cause of an incident or how it could have been avoided
Put it in writing
• Handwritten Notes/"Speed Forms"
• Tapes/Transcripts
• Letters to clients
Admissibility/Credibility
Fact:
•Tells what actually happened; can be true or false
Opinion:
•Tells an attitude or judgment; cannot be proven true or false
Think Before You Write…
Private e-mail messages made public
It May be Evidence One Day
Social Media—Fact or Opinion
FACTS
opinions
Facts—Contract
Get it in writing
Do not start project until you have a signed agreement(s)
• Owner
• Developer
• Subs
Modify the contract in writing
To Document or
Not to Document
The Dilemma—Client Email
24/7/365
• Who
• What
• Where
• When
• Why
• How
• Questions
• Answers
The Dilemma—Addenda/Change Orders
Original Contract Change Order
The Dilemma—Site Visit
The Dilemma—Site Visit
The Dilemma—Project Dispute
Preserve the Record
Document Retention Policy
What files, documents, and communications will be retained
How long such files will be
retained
All Media
Organization
Data Retention Policy Outline
State the purpose of the policy
Define policy users
Identify the type of
data that are covered
by the policy
Identify the length of time for retention
•Identify exceptions to the rule
Outline the procedures
for data retention
Outline the procedures
for data destruction
Retention Period
The average retention period is between 3 to 7
years
Strongly encouraged retention of records for
projects until the expiration of the applicable statute of
limitations period
You’ve been served…
Immediately and automatically extended upon notice of a claim or lawsuit + Preservation letter(s)
Applicable to all project employees and subs
Spoliation
Definition: the intentional, reckless, or negligent withholding, hiding, fabricating, or destroying of evidence relevant to a legal proceeding
EVIDENCE
Spoliation Purpose
To prevent a party from undermining the discovery
process by destroying unfavorable evidence
The duty to exercise reasonable care to preserve relevant information upon notice of a potential claim
• It may be irrelevant if a breach of this duty is intentional or negligent
Spoliation Presumption
•This presumption may be rebutted if the alleged spoliator shows that the evidence in question was not destroyed with fraudulent intent or purpose
The intentional spoliation
of evidence relevant to a case raises a presumption
that the evidence would
have been unfavorable to the position of the spoliator.
Federal Rules of Civil Procedure
Discovery/Document Production
• The party requesting discovery has the ability to designate the form or forms in which it wants electronically stored information produced
• There may be different formats for different types of electronically stored information
• The form of production is extremely important when exchanging electronically stored information
• If the responding party maintains the requested information in a searchable format in its ordinary course of business, the production should not be produced in a format that removes this feature
Spoliation Analysis
Was there a duty?
• Actual notice not required
• Reasonably should know a claim may be filed
Was the evidence spoliated, intentionally or negligently?
• Potential defenses to spoliation: destruction in the ordinary course of business, or beyond the spoliator’s control
• However, if the duty arose prior to destruction, such defenses will not work
Was there resulting prejudice to the other party’s case?
• Relevancy, harmful effect, and availability of other evidence
Spoliation Remedies
A party is entitled to a remedy when the spoliation hinders its ability to present its case OR defense to a case
The court has broad discretion regarding appropriate sanctions
Sanctions range from dismissing a case or awarding default judgment (or summary judgment) against the spoliator – to a jury instruction regarding the spoliation
Summary
Summary
Document FACTS.
Do not document opinions.
Differentiate privileged
communications from non-protected
communications.
Document retention
policies dictate what to retain and for how
long.
Upon notice of a claim or
document retention letter,
preserve all data.
This concludes The American Institute of Architects
Continuing Education Systems Program
Alayne McDonald, Professional Development Coordinator
Alayne.McDonald@rlicorp.com
Alison Mullins, Senior Counsel
Amullins@protoraelaw.com
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