This is a useful blog from David Fitzpatrick & R. Thomas Dunn looking at recent recommendations by the American Arbitration Association (“AAA”) in respect of AAA Construction Advocates and Arbitrators with regard to best discovery practices and tips for Construction Arbitration.
The post summarises the changes very well and covers many aspects of a typical disclosure case from site inspections to disputes over discovery to potential sanctions. I’ll not regurgitate the content of the blog, but it is interesting to see how different jurisdictions and different technical fields grapple with eDiscovery concepts.
Construction projects often come up with some interesting challenges from an eDiscovery perspective. These include:
- A wide use of CAD drawings and other design-related documentation that is very different from what you might see in a non-construction commercial dispute.
- A wide use of project and program management files and documents that are different as above.
- Increased expectation of paper files and documents relevant to the matter.
- Many disputes are mid-project so the construction is still “live” and therefore the collection exercise needs to be carried out with regard to this.
In many ways, the processes for construction do not change, but it is important to recognise and adapt where needed to some of the challenges that come up in construction disputes.
Due to “the growing use and sheer volume of email, CAD drawings and scheduling information in construction projects,” documents that are maintained and stored electronically should be provided in the same manner they are maintained, and be crafted to make searching the electronic data as economical and expeditious as possible. The practice tips note that, the arbitrator should ask a number of questions at the pre-hearing conference to understand the type of information maintained, its location, and accessibility. Moreover, prior to the pre-hearing conference the parties should discuss their Electronically Stored Information (“ESI”) protocol and attempt to come to an agreement. An arbitrator might even keep a template or sample ESI protocol to share with the parties and provide discretion to deviate from the template based on the size and complexity of the case.