October 12, 2022
Managing documents in a digital world
BY ROB KENNALEY
Apple recently announced that users who send texts to other Apple devices with the same operating software will have 15 minutes to either delete or edit the text messages on both devices. This has caused us to revisit the importance of risk management in relation to “documents” in an ever-changing digital world.Internal record keeping practices are important toward managing future risk. In addition, parties need to keep in mind that what staff and management write today may be read by an adverse party or Court at a later date. Avoiding unnecessarily culpatory or confusing language, as a practice, can be important. Similarly, construction litigation is largely document driven: contract documents, change orders, site reports and notes, meeting minutes and business records make up the relevant evidence in the vast majority of cases. Accordingly, well organized file management and storage systems can save time and money in the event of a dispute.
If a dispute escalates to litigation, all parties will most likely have an obligation to secure and produce all relevant documents. More importantly, in the event of a dispute, parties will want a documentary record capable of supporting their position available. Strategically, participants in construction should consider a number of steps to better ensure they will be able to meet their disclosure obligations and have evidence available to make their case in litigation. It is in this context that the new Apple software changes are potentially significant.
First, parties should attempt wherever possible to not allow important communications to be made by text message or other digital media (such as WhatsApp, etc.). This is because such data may be difficult to recreate or rely on. Even without the new Apple options, the difficulties faced in reproducing text messages can be formidable.
In addition, parties should ensure they have a system in place to secure and manage digital communications. Emails should be regularly pulled into project specific folders and not deleted until the potential for litigation in relation to a project has expired. It will put a party in a tough situation if all emails are kept in a single inbox and sent folders, such that someone will have to go through the folders to find and assess relevant documents — which can be difficult to do if generally worded emails might relate to more than one project.
In addition, limitation periods generally expire based on the “discoverability” principle, such that claims might arise years down the road. Parties are generally required to preserve, in their original format, all documents that could reasonably be expected to be potentially relevant to the litigation, until such time as their actual relevance to the litigation can be determined. This includes all originals, copies and drafts of the same document. Accordingly, it is important to ensure that data is archived, and not deleted.
It is also important to note that, for the purposes of litigation, any digital record is a “document” that should be secured and potentially produced. This obligation extends to all electronically stored information, stored on any kind of electronic media. These can include typed documents, spreadsheets and other accounting data, electronically stored voicemail records, archived and deleted files, auto-recovery files, web-based files, such as internet history logs, temporary internet files and “cookies.” These, of course, might be stored on hard drives and servers, backup media, USB storage devices, CDs and DVDs, laptop computers, mobile phones and other personal digital assistants. In addition, the obligation to produce a digital document will generally not be satisfied by printing out the document. Rather, the digital version itself should be available for production.
When it appears a dispute might be likely, it is essential to ensure that potentially relevant electronic records are preserved intact and unmodified in their original electronic form, until counsel has an opportunity to assess the relevance of the records and the appropriate means of production of the records to opposing parties.
Parties should promptly inform all involved employees, contract workers and third-parties who may be custodians of potentially relevant documents of the need to preserve these documents in their original format without modification. The list of custodians may include IT personnel, subcontractors and others who may have control over documents they did not create themselves. Those responsible should be instructed not to destroy, delete or modify electronically stored information in any way. Each individual should be asked to specifically identify the places in which potentially relevant documents may be located (including network folders, portable computers, PDAs, and home offices), and to outline their personal document handling practices.
Potentially relevant documents must be preserved whether they are located on company-owned, personally owned, or third-party owned locations, provided the documents are within the client’s possession, control or power. This means they are required to preserve not only documents they possess, but also those within their “control or power.” The affected documents include any documents that a party has the ability to possess or to obtain from others, such as from employees, companies with which a party is involved, banks, professionals (such as accountants or lawyers), the government, insurers, and third-party service providers.
Where potentially relevant documents are destroyed or lost, a party may face allegations of spoliation of evidence. The consequences of spoliation can be very serious. A court may dismiss your claim or strike a defence, it may draw an adverse inference from the destruction of the documents, or it may require payment of some of the opposing parties’ costs, among other things.
Rob Kennaley is with Kennaley Construction Law, a construction law firm with offices in Simcoe, Toronto and Barrie.