Email is accessible 24/7 on desktop computers, laptops, tablets, and cellphones. It has become such an important part in the workplace that recent studies show the average worker receives more than 120 per day and the average project manager on a construction project will spend three to three-and-a-half hours per day on work emails.
Despite the impact of emails in the workplace, contractors still view emails as a less formal means of communication. The tendency to treat emails as less formal stems from the constant access and instantaneous nature of emails. This is a mistake. Email communications should be treated in a similar manner to any other key workplace policy, procedure or tool. It is important to consider establishing clear policies and procedures regarding the use of email during your projects and consider implementing training and instruction, and developing policies and procedures for your project team on how to communicate effectively.
Why are emails so critical?
Construction projects frequently involve the electronic exchange of most project information, whether via email, electronic submissions, or electronic databases such as Procore or Prolog. Most construction contracts now recognize this and provide for the retention and exchange of electronic files, as well as notice via email. In fact, most of the AIA standard form contracts recognize electronic files and provide for notice in electronic format. The reason for the push to paperless projects is simple – it is more efficient. A contractor who fully takes advantages of electronic communications will discover significant time and cost savings.
However, this is not the only vital feature of electronic communications that a contractor should consider. Imagine this – you are a project manager, composing an internal email to a colleague regarding a minor delay on your project. Your email is prepared in less than ten minutes with little thought and specifics. Fast forward four years and your company is being sued by the owner for delaying substantial completion of the project. It is your contention that the delays were caused by owner changes but, during your deposition, that email, from four years’ prior, is introduced into evidence and used as Exhibit A by the owner’s counsel for why your company was the cause in fact of delays on the project.
This happens on a daily basis in construction litigation all over the country. E-discovery is more essential and prevalent than ever. The Federal Rules of Civil Procedure were amended in 2006 to more fully address the rights and obligations of parties relating to the discovery of electronic records. State laws have since modeled themselves after the Federal Rules of Civil Procedure or state courts have issued opinions setting precedent for how e-discovery shall be governed in your home state.
Navigating Electronic Discovery: Best Practices for Contractors Involved In Litigation
This is important because attorneys are more equipped than ever at searching for and collecting emails composed during a project. Contractors can be certain that opposing counsel in a case will look for and try to use any external or internal communications relating to the project. Whether such communications are discoverable, depends on the facts and circumstances of the case.
Email is not just imperative for communicating effectively on a project – it is also potential evidence and a permanent record for establishing what actually occurred during the course of construction. Considering this, here are some important points and suggestions to keep in mind when developing a company policy regarding emails, training your employees on emails, or simply drafting an email.
Keep your emails professional
Too often in discovery, attorneys find email communications that are unprofessional and inappropriate for the work place. Whether communications are directly relevant to the project may not matter because it may still be discovered and used in litigation. It is important to always consider whether you would put the communication in a letter. Even if the message does not require the formality of a letter, the communication should still be professional. Additionally, avoid using all caps or explanation points as it could be viewed as yelling and try to avoid using quirky email backgrounds, odd fonts, or philosophical quotes.
Avoid using foul language, sarcasm or humor
This should be obvious. Email messages with foul language, sarcasm, or humor do not always resonate years later in litigation. By using foul language, sarcasm, or humor, a sender could lose credibility in the eyes of a judge, arbitrator, or juror. Never draft an email that you may later have to apologize for because of the rudeness or crudeness of the prose.
Provide facts, not feelings
A consistent problem in the workplace is that employees project their feelings and emotions in to their email communications. Avoid this and stick to the facts. Document the facts, all the facts, and nothing but the facts. Leave your emotions, feelings, legalistic and antagonistic language, judgmental comments, and personal attacks behind. If used properly, email communications should be an effective tool in documenting significant events or discussions on the project and later using the emails for proof in litigation or arbitration of such events or discussions. To effectively utilize this tool though, project managers and other employees need to document just the facts of what actually happened. If the email may include emotions or feelings, the best advice is to write the email, walk away from it without sending it, and then read it hours later. Simply walking away from a hastily drafted email may provide the drafter a new perspective and provide the drafter with time to “cool down” and think.
Avoid being self-critical
Another common theme in project emails, especially internal emails, are self-critical comments of one’s own work or their team’s work. While noting “lessons learned” and self-critiquing is beneficial for professional growth, it is harmful in litigation or arbitration. Contractors can be certain that such email communications, if discovered by opposing counsel, will be used against them in litigation or arbitration.
Stay on topic
Email communications on a project should be limited to a singular project. They should not include other related projects, personal matters, or other off-topic items. By adhering to this rule, a contractor will avoid unrelated matters being discovered in litigation or arbitration.
Have a supervisor or management review prior to hitting send
If the communication involves a significant project event, a contractor should almost always have another set of eyes review the communication before it is sent. Similar to walking away from the communication, this tip will provide the drafted with a new perspective on the event and the communication.
Consider potential litigation
All contractors should have company policies and procedures relating to electronic document retention. Discovery rules impose an affirmative duty on a contractor to preserve all relevant documents, including project emails, once the contractor reasonably anticipates a claim or dispute may arise. A company’s record retention policy should, amongst other things, address the storage, retention and disposal of electronic records, designate appropriate individuals with primary responsibility and accountability for proper storage, retention, location and collection of electronic project records, and consider limiting permissible storage locations and sources of electronic records (such as a sharefile, or single project database). Additionally, once a contractor believes litigation may arise, the contractor should immediately consult with its in-house counsel or its construction lawyer. Litigation hold procedures may need to be implemented by counsel to ensure retention of project records. Also, electronic communications exchanged during the project, if in anticipation of litigation or directly with your attorney, may be considered work product or attorney-client privileged, protecting those communications from production in litigation or arbitration. Consulting with your in-house counsel or a construction attorney should assist with identifying what communications should be protected.
All contractors should provide training and company policies and procedures in relation to email communications. It has become too important of a tool to not devote serious resources to it. Consider each of the suggestions and tips above in developing your training, policies or procedures in relation to email communications.
Christopher Horton is an attorney with the law firm Smith, Currie & Hancock. He can be reached at [email protected].
