I enjoyed reading this very comprehensive article on the importance of documents within a construction dispute by Bartosz Krużewski and Robert Moj from Clifford Chance that was featured in Global Arbitration Review. Documents are a fundamental aspect of any case, construction or otherwise, as they often memorialise information, facts and opinions at the time the underlying event that triggered the dispute occurred. They do this, normally, without the foresight that a dispute will arise and present a record undimmed by time passing.
However, the authors are right to acknowledge the double edged sword that this presents to parties: namely the time, costs and resources needed to adequately manage the documents. This has always been a challenge and the effective and efficient use of intelligent processes and technologies can greatly improve the process.
The starting point has to be to effectively scope the project from a document and data perspective - ensuring that relevant data sources are appropriately identified and a relevant approach considered for each bearing in mind proportionality. This does not mean you have to collect everything but you should fully consider the various data and document repositories that companies maintain.
Equally it does not mean you have to process and review everything that is collected. It is generally preferential to preserve and collect fairly widely but the process for certain sources may end then, unless other events means they need to be subsequently included in the review process. Any data that is processed needs to be done so completely and accurately - ensuring that all processes successfully complete across all data sources.
When it comes to the review, there are many techniques that can help this process be as effective and efficient as possible, including email threading, near de-duplication, language identification, predictive coding, continuous active learning and appropriate use of visualisations. All of these can help reduce the documents that need to be reviewed and make the process more efficient.
However, not every case nor data set is the same, therefore you cannot blindly throw all these technologies at each and every data set in every case and expect optimal results. How and when each of the technologies is applied and how the results are managed are equally important to ensure the success of the review process. If you’d like to hear more about how we help clients through this process, please contact me.
On one hand, documents are the most accurate and reliable evidence serving the parties, experts and finally the tribunals to decide on the merits of the case. On the other hand, the number of documents in construction disputes is overwhelming and might still increase in the future with the increase in the complexity of the construction projects and the development of the parties’ awareness of the role of documents as evidence in arbitration. Therefore, efficient management of documents in the construction disputes is important to the parties’ success in arbitration, and its role will grow in the future.