To Document or Not to Document: That is the Question DPLE 182

Transcription

1 To Document or Not to Document: That is the Question DPLE 182

2 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.

3 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

4 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 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.

5 Learning Objectives Participants in this session will: Gain perspective on what to document versus what notto 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

6 Memories fade even when there is an incentive to remember accurately

7 Create the Record

8 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

9 Fact: Opinion: Tells what actually happened; can be true or false Tells an attitude or judgment; cannot be proven true or false

10 Think Before You Write It May be Evidence One Day Private messages made public

11 Social Media Fact or Opinion facebook Pinterest LinkedIn twitter

12 FACTS opinions

13

14 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

15 To Document or Not to Document

16 The Dilemma Client 24/7/365 Who What Where When Why How Questions Answers

17 The Dilemma Addenda/Change Orders Original Contract Change Order

18 The Dilemma Site Visit

19 The Dilemma Site Visit

20 The Dilemma Project Dispute

21 Preserve the Record

22 Document Retention Policy What files, documents, and communications will be retained How long such files will be retained

23 All Media

24 Organization

25 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

26 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

27 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

28 Spoliation Definition: the intentional, reckless, or negligent withholding, hiding, fabricating, or destroying of evidence relevant to a legal proceeding EVIDENCE

29 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

30 Spoliation Presumption 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. This presumption may be rebutted if the alleged spoliator shows that the evidence in question was not destroyed with fraudulent intent or purpose

31 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

32 Spoliation Analysis Was there a duty? Actual notice not required Reasonably should know a claim may be filed Was there resulting prejudice to the other party s case? Relevancy, harmful effect, and availability of other evidence 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

33 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

34 Summary

35 Summary Document FACTS. Do not document opinions. Differentiate privileged communications from nonprotected communications. Document retention policies dictate what to retain and for how long. Upon notice of a claim or document retention letter, preserve all data.

36 This concludes The American Institute of Architects Continuing Education Systems Program Alayne McDonald, Professional Development Coordinator Alison Mullins, Senior Counsel