Tag: ProNetwork News

Document Retention and Disposition

By Lynda

Emails. Every work-day, we read, write, and respond to dozens of them. Some are no longer than a single sentence, but that sentence may turn out to be a vital one, especially in the event of a claim. Today, expectations for document retention are higher than ever, and the penalties for failing to meet those expectations in the event of litigation are correspondingly severe.

Knowing what you can (and must!) do with your electronic documents is important. We hope the following excerpt from the December issue of ProNetwork News, Document Retention and Disposition: A Key Element of a Design Professional Quality Control Manual, will answer a few of your questions to this end:

Excerpted from “Guidelines for Developing Your Firm’s Quality Control Manual” by Jacqueline Pons-Bunney and Peter Stacy of Weil & Drage, APC of CA, NV and AZ

Electronic Documents

As we increasingly function in virtual or paperless environments, the retention of electronic information has become a hot topic. Courts have imposed damage awards and penalties on companies that have stalled in discovery or failed to maintain and/or purged such information in anticipation of litigation. Further, there are regulatory and contractual requirements that make an electronic document policy a must.

With the passage of document tampering and destruction provisions of the Sarbanes-Oxley Act and recent amendments to the Federal Rules of Civil Procedure, every company is required to have someone with knowledge of the storage and retrievability of electronic records.

Emails in particular are extremely important in litigation discovery, but please note that they are not the only electronic files in your firm. You will have to apply your e-document policy to Internet downloads, instant messaging, text messages, Websites, e-faxes and on-line bulletin board postings. They all need to be retained in some format/location for generally the same length of time as hard copy documents, and you will need to address retention, destruction, system requirements and storage capabilities, monitoring and enforcement.

Here are some basic steps towards formulating an e-document policy:

  • Consult with your IT staff or outside firm about current system capacities and procedures.
  • Consider volume, usage, existing archiving (locally and system-wide) and time expended on existing and potential procedures.
  • Review both legal/regulatory and contractual requirements.
  • Establish procedures for purging emails from local hard drives, the company’s system and separate servers.
  • Address implementation (automatic v. manual) and enforcement.

Remember that the policy with respect to the destruction of e-documents, just like hard copies, must be suspended once there has been a notification of litigation or if it is reasonably anticipated.

It is important to consult with legal counsel, and in the case of e-documents, with an IT expert, to determine the scope and content of document retention and disposal policies and procedures. Then, tailor them to your employees, your clients and your fields of practice. The risks and costs of failing to address the retention of both hard copy and electronic information are too great to be ignored.

The full-length PDF version of this newsletter includes many more helpful tips.

ProNetwork News is the latest value-added resource produced by a/e ProNet. Each monthly edition includes an informative and timely article relevant to the design industry and authored by an industry expert. Contact your local a/e ProNet broker for early access to these excellent newsletters.

ProNetwork News: Private Arbitration – A better way to resolve construction disputes?

By Lynda

The November issue of ProNetwork News focuses on explaining the benefits of arbitration. The author, Melissa Dewey Brumback, is a litigation partner at Ragsdale Liggett PLLC of Raleigh, North Carolina. The bulk of her practice consists of representing architects and engineers in construction-related claims including construction administration and management, plan defects, testing failure claims and delay claims.

The following is an excerpt from Private Arbitration: A better way to resolve construction disputes?:

Architects and Engineers are very familiar with the concept of arbitration of construction disputes. The three main standard sets of form documents – AIA, EJCDC, and ConsensusDOCS, – all contemplate resolving disputes outside of a courtroom. In the past, the default tribunal was arbitration, and, in the case of AIA documents, arbitration through the American Arbitration Association (AAA).

AAA arbitration is, by and large, successful. The tribunal understands that construction disputes are not like typical breach of contract cases, and that individuals with specialized training and knowledge will likely better understand industry norms and terminology. Leaving such concepts as Requests for Information, Construction Change Orders, Construction Change Directives, Construction Administration v. Construction Management, Acceleration, Critical Path and other industry terms to a lay jury is often deemed unwise. By utilizing AAA arbitration, the parties can instead get a panel of industry experts to hear their case and, presumably, the matter can be dispensed with much more quickly and cheaply than traditional courtroom litigation.

However, if you have ever had a chance to participate in a full AAA arbitration, you know that its benefits come with costs: hefty filing fees, inflexible coordinators, uncertain evidence rules and more chance of a panel “splitting the baby.”

What is the best venue, then, for construction disputes? That depends on the size of your project, the nature of the dispute and the jurisdiction you are in. However, one option that is being used more and more is private arbitration.

Private arbitration can either be negotiated up front, during contract drafting, or after a dispute has arisen. In fact, I have even gotten opposing counsel to agree to private arbitration after they have filed the lawsuit.

Click here for the full-length PDF version of this article.

ProNetwork News is the latest value-added resource produced by a/e ProNet. Each monthly edition includes an informative, timely article relevant to the design industry and authored by an industry expert. Contact your local a/e ProNet broker for early access to these excellent newsletters.

ProNetwork News: Internal Risk Management – Part 2 of 2

By Lynda

The following is an excerpt from the October issue of a/e ProNet’s monthly publication, ProNetwork News, now public and available on our website.

Excerpted from an article by Drew Seaman and Tom Waggoner of Straub, Seaman & Allen, P.C., St. Joseph and Grandville, Michigan. This is the second of two parts. You may access previous issues of our ProNetwork News here.

“In the last issue, we presented the first of two parts of a practical guide to risk management protocols for the design professional. We first addressed the selection of clients and projects, and recommended that both be assessed in light of your firm’s strengths and culture before engagement.

We then presented a detailed list of tips on how to navigate the sometimes-treacherous waters of the contract. The most important take-away from this section is that your firm needs to establish and maintain a document and contract review process, helmed by your most able staff, and to enlist the aid and counsel of an attorney who is an expert in the field.

We will now address the final four topics in our risk management procedure review:

• Communications

• Contract Document Reviews

• Surveys

• Construction/Contract Administration

Communication

No one piece of risk  management advice is more repeated, or more important, than to document all communications throughout the course of the project. All communications, including oral conversations, should be documented in some fashion.

Your firm’s communication protocol should address these matters:

• Letters, notes, memos, e-mails and plans and specifications

• Protocols for file documentation”

Click here for the full-length PDF version of this article.

ProNetwork News is the latest value-added resource produced by a/e ProNet. Each monthly edition includes an informative, timely article relevant to the design industry and authored by an industry expert. Contact your local a/e ProNet broker for early access to these excellent newsletters.