• By John Sylvanus, Barley Snyder

Good archiving can save you money


Have you ever searched for a specific email in your firm’s database? If not, give it a try. Don’t ask IT or someone else to do it for you. Open the files and search for yourself. If your system administrator has saved everything in PDF format, it is searchable. Use a keyword and find the specific email you want. Then read the rest of this article. If everything is saved in what is called “native” format, good luck. How a company archives its electronic documentation could save it tens of thousands of dollars in major construction litigation. Federal courts require agreements on electronic document production which can stretch to 10 or 12 pages of details on how and in what form documents are exchanged. Construction is a complicated process. Every decision involves multiple people emailing each other. Gone are the days when these matters were handled in site meetings and telephone calls, with a typewritten letter commemorating the decision. Today there are email chains. While you are in your email archives, search for the emails related to a specific matter you recall as being a difficult negotiation and resolution. See how many times an individual email is repeated. For each individual in your organization, there is a separate email chain each time that person sent or received an email relating to that issue. At the close of the process, an email saying “I concur” can add an additional 100 pages to the electronic files. When a dispute arises and I get involved, the “rubber meets the road.” Well-organized and searchable files make locating relevant documents easy and inexpensive. What constitutes “well-organized” to the person charging you by the hour to find things? First and most important is completeness. Make certain everyone is dedicated to the process. A missing email can be problematic. If it favors your opponent, you can be certain they have it. If you don’t, I don’t and I can't help prepare you to respond to the claims in that email. Next is labeling and organization. Remember the days of paper files with file labels? Documents are no good to me if I can't locate them. If I’m looking for a specific submittal, the return stamped copy and resubmittals, it’s much easier if they are all in a submittal file, with a subfile properly labelled to that submittal than if all submittal documents are saved chronologically as produced. Searchability is worth mentioning again. If documents aren’t saved in searchable PDF or other form, they are worthless. An often overlooked element is size. Save emails by months, not years. Save submittals in separate subfiles rather than as a whole. The same goes for change order requests and change orders, job conference reports, daily reports and all documents. The smaller the file the easier it is to search. Finally is format. All documents should be converted to PDF format. It is easy to open and, most importantly, searchable. Searchability is critical to locating documents. In a real sense, your archival procedures can save you thousands of dollars in the event of litigation. Making sure your construction lawyer can find documents is critical to success or failure. Spend some time, and perhaps money, to make certain your files are litigation-ready, or prepare for the cost of not doing so. John Sylvanus is an of counsel at Barley Snyder and a member of the firm’s litigation group. He works in construction litigation defense for construction and development companies. To reach John, contact him at 717-852-4988 or at jsylvanus@barley.com.

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