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What you thought you were getting…. What you got…. Bate and Switch. Legal Liability of Design and Survey. New Technologies and Legal Risks. Matthew DeVries Stites & Harbison PLLC
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What you thought you were getting…. What you got…. Bate and Switch
Legal Liability of Design and Survey New Technologies and Legal Risks Matthew DeVries Stites & Harbison PLLC Alexandria, VA | Atlanta, GA | Frankfort, KY | Franklin, TN | Jeffersonville, IN | Lexington, KY | Louisville, KY | Nashville, TN
BIM versus CIM Lessons Identify best practices for the paperless project Overview • Analyze the impact of technology on construction • Understand what documents can help/hurt your case
Who Am I? • Father of seven • Husband of one • Construction attorney and LEED AP B+DC • Blogger: www.bestpracticesconstructionlaw.com
Team Lawyer Judge What Can This Dude Teach Me?
“People ask me to predict the future, when all I want to do is prevent it. Better yet, build it.” - Ray Bradbury, Beyond 1984
Communicate expectations Document progress Preserve claims Minimize exposure and prevail in disputes! Why should you have project management procedures in place?
Standard management procedures Importance of project communication How to document progress of work You know…
Standard management procedures Importance of project communication How to document progress of work You know…but did you know? • People are responsible for project management • Litigation is about failed expectations • “What” is as important as “How” you document
Reservation of rights Causal connection Prove cost and delay Why are proper records essential for claims and disputes?
Schedules Submittals Drawings Emails Photos Accounting Critical Documentation Meeting minutes COs Daily-wkly- monthly reports RFIs Time sheets Logs Corresp. Diaries
Personal emails IMs / Text Blog trails Internet usage logs Jokes and photos Non-Critical / Problem Documents
“Paperless success is more than just taking all the paper you have and putting it into a digital file cabinet.”
Web Based Capabilities • Project team accesses same web based database • Access to design drawings, job site photos, schedules, and +400 reports • Document control is enhanced by tracking revisions, storing master files, streamlining review process • Compliance with corporate procedures
Marketing / Business Development Building Permit Information Servicing Manuals and Project Specifications Project Management and Version Control QR Codes in Construction
Payment Controls Project Lifecycle Construction Contract Close-out Bid Vendor Eval Pre-Qual Design T Accounting Systems Pre-qualification Management: PQM Bid Management: GradeBeam Construction Payment Management: CPM Project Mgt. Textura Construction Collaboration Solutions Planrooms Other Project Participants
“If you are not involved in BIM, what are you waiting for?” Joe Jarbo, Clark Construction Group AGC President New Technologies “If you are not involved in CIM, what are you waiting for?” Matt DeVries Stites & Harbison PLLC
CIM Legal Issues Disclaimer: It will take time to develop contracts tailored to the CIM process. For attorneys, it is difficult to create good contracts if there is no legal precedent to follow. At present, there no reported cases on CIM. Thus, it will take time (and legal disputes) to fully understand the legal risks associated with CIM.
Contract framework Model management Intellectual property rights Reliance on data Limitation of liabilities Ownership of process Lessons from BIM
CIM: Early Legal Issues • Who owns the CIM data, surveys, models? Owner? Engineer? Everyone? • Who can rely on information, data, surveys? • If fully integrated project, who can change the “stuff” created or contributed by each party? • Who takes the risk related to changes in the data or survey? • Insurance issues will be difficult to determine.
Are You Ready to Jump? What is the “put it in writing” rule? What is hearsay? Non-hearsay? Exceptions? Email versus Letter versusChange Order? Can we shred documents at the end? What about paperless project?
“Put it in Writing” • Why? • Who? • What? • How? • When?
Hearsay, Exceptions and Non-Hearsay “An out of court statement offered for the truth of the matter.”
Exceptions to “Hearsay” Rule Business record exception Author actually observed conditions The records were prepared in the normal course of business The records were prepared at the time of the event(s) or reasonably soon thereafter There is no suggestion that the records were prepared for the specific purpose of use in litigation –“A less-guarded time.”
The Legal World • Higgins Dev. Partners v. Skanska USA (Mont. 2009) • Email sufficient to support a finding of increased costs for change order • Inland Construction Co. v. Cameron Park (N.C. Ct. App. 2007) • Email promising additional work not a “contract” • Lack of executed change order found to be without merit
Case Law (cont’d) • A-1 General Contracting v. River Market Communications (N.Y. 1995) • Handwritten notations on contract “should be ignored” • No agreement about payment schedule • Klein Development v. Ellis K. Phelps & Co. (Fl. Ct. App. 2000) • Faxed release of lien binding? • Letter requesting original signature was contradictory evidence
Case Law (cont’d) • Bethlehem Area Sch. Dist. v. White Bros. Construction (Pa. Com. Pl. 2004) • Letter constituted a limited admission of damages (tiles and carpet, not mold) • Raymond’s Building Supply v. Mattson (Conn. Super. 2007) • Photographs established that problems “were or should have been” evident at the time of termination
e-Discovery • General rule “[A] responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible …” • Exception ESI which is “not reasonably accessible because of undue burden or cost”
Just answer the question, Matt! • While a litigant is under no duty to keep or retain every document in its possession, it is under a duty to preserve: • What it knows or reasonably should know; • Relevant to the action; • Reasonably calculated to lead to discovery of admissible evidence; • Reasonably likely to be requested; and/or • Subject of a pending discovery request.
Legal Questions: Paperless Project • Who owns the license to the program? • How much access do the parties have to the documents created in the program? • Who controls the server? • Will the parties be granted access to project documents during the project? • Is less formal communication (email) good or bad for the parties?
Legal Questions: Paperless Project • Would you still use letters? • Could emails to attorneys be retrieved by other parties? • Is a written instruction via email the same as a change order? • What type of information would you want protected?
