Utilizing eDiscovery in Construction Litigation

The complex landscape of construction-related litigation requires construction firms to think more strategically about how they approach legal matters.

To gain a competitive advantage ahead of legal battles, construction firms navigating these challenges can adopt technology to help streamline the process.
To gain a competitive advantage ahead of legal battles, construction firms navigating these challenges can adopt technology to help streamline the process.
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There are few areas of the law that are as complex as construction-related litigation. The construction industry faces a handful of unique challenges that can often spill into legal disputes. This includes project delays due to inclement weather, like what we saw in Houston this summer due to the extreme heat that’s been plaguing the globe, and the lingering impacts of the pandemic such as inflation and supply chain disruptions. Furthermore, unlike traditional two-sided legal disputes, construction cases often involve numerous stakeholders and require the review of design file types that aren’t found in other industries, making sorting through information and datasets more challenging.

To offset some of the intricacies of managing these legal matters, it is vital for construction organizations to lean into technological solutions like electronic discovery tools, known as eDiscovery, which can help to navigate and streamline complex cases. More specifically, eDiscovery involves identifying, collecting and producing electronically-stored information as part of a response to a lawsuit or investigation. By using this form of digital investigation, construction firms can manage highly complex legal cases in a more cost-and time-efficient manner.

Understanding the Challenges in Construction Litigation

Construction-related litigation comes with numerous unique complexities that require even greater scrutiny than other industries. These cases tend to involve several stakeholders, including contractors, subcontractors, project managers, consultants, suppliers, and more, with each audience having its own specific needs to be considered.

Due to the number of varied stakeholders involved, legal professionals working on construction disputes must also sift through massive data sets, where it can be harder to navigate and identify the most important facts and details on a matter. As a result of having so many sources, the data review and management process becomes more costly and time-consuming, as lawyers need to comb through and recognize relevant data points in a specific case.

Additionally, unlike traditional legal disputes, construction cases often include non-traditional documents and data types, like Computer-Aided Design (CAD) drawings, which are typically harder to decipher using traditional discovery methods. Another often overlooked component is that construction firms tend to operate on their own proprietary, self-built communication platforms instead of the more commonly used Microsoft Teams and Zoom platforms. This makes extracting information from these systems and compiling them into a unified narrative much more difficult.

To gain a competitive advantage ahead of legal battles, construction firms navigating these challenges can adopt technology to help streamline the process. Additionally, seeking out partnerships with legal tech providers who have a keen understanding of not only how the technology works, but how to apply it specifically in construction litigation matters, is key in addressing these challenges. When looking for such an external partner, bear in mind that it’s not just about the eDiscovery tools they use, but also about surrounding yourself with a team of experts, sometimes from non-traditional professional backgrounds such as linguists and data scientists, who can offer unique support and an outsider’s perspective.

Utilizing eDiscovery for a Strategic Advantage

eDiscovery, a process involving electronic data collection and analysis for legal matters, can help offset some of the aforementioned challenges for construction firms. This approach can help legal professionals manage document-intensive, multi-party cases in a more proficient manner. eDiscovery tools make it easier to identify and sort through information to determine more efficiently which information is critical to the case, thus allowing legal teams to swiftly sort through massive volumes of data, making the categorization and analysis process much easier.

However, firms that wait for a lawsuit before starting to build their eDiscovery capabilities will need to play catch-up. It's always best to address discovery needs before facing a lawsuit. By utilizing eDiscovery as a planning tool for potential litigation, construction firms can better leverage technology to alleviate finding themselves in reactive mode when critical information is needed. The complexities of construction litigation add to the need for an early risk assessment approach, especially given the time and cost factors associated with the application of traditional search techniques across a myriad of data sets and digital files. A traditional approach can take a significant amount of time to complete and can cost construction firms millions of dollars, which is both inefficient and potentially damaging to a case. In the construction space, the number of data sets can be exponentially larger, making it even more difficult to sort through and decipher the narratives that will be critical to winning the case.

How eDiscovery Tools Can Help Save Time and Money

To offset some of these challenges, utilizing specific tools and resources can assist with these more complex matters. Better yet, these tools and resources can be leveraged early in the matter, rather than waiting for all document review efforts to be completed. For example, early case assessment efforts can leverage an expert search team comprised of linguists, data scientists, and attorneys to explore key issues in the initial phase of a matter. The expert team can serve up the most important documents identified to those key issues for the counsel’s consideration, even before comprehensive document review efforts commence. This same approach involving strategic search can also be leveraged in lieu of traditional issue coding during document review, can be deployed to analyze incoming document productions, and to create deposition or trial kits. Not only is a strategic search approach more cost-effective than traditional approaches, but it surfaces only the most important data for senior resources.

An additional service option is search term consultation which involves leveraging a search expert team. This team helps to streamline the discovery process by enabling more targeted searches and reducing massive data sets that can range to multiple terabytes in size. Investing in search term development pays dividends as it reduces the total volume of data requiring processing, hosting, and reviewing. The expert search team tests and measures the effectiveness of each term. The narrower you can make the initial data set, the smaller you can make the matter itself.

Artificial intelligence (AI) can also enhance efficiency by predicting privileges and other legal classifications such as confidentiality. Given that document review especially the privilege review — is the most expensive portion of discovery efforts, there are tremendous savings to be gained. AI tools can be leveraged across a portfolio of matters as well, minimizing the investment in attorney training previously required in every case. 

The complex landscape of construction-related litigation requires construction firms to think more strategically about how they approach legal matters. There is a better way of thinking about the discovery process; eDiscovery can assist with helping to offset many of the pain points raised above, including the number of stakeholders involved in projects, in addition to the unique project file types and high-volume data sets. By leveraging strategic search services and AI in discovery, construction firms can streamline information and cut down on costs and time spent working on a case. Often, these services also produce a strategic advantage in the matter.