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Construction projects often result in litigation. Once litigation is initiated, a process lawyers call “discovery” is not far behind. Discovery starts after the party initiating a lawsuit files a complaint, and a party responding to a lawsuit files an answer. 

In discovery, the lawyers for each side can ask for documents, pictures, files, text messages, emails, project plans, change orders or anything else that relate to the project. The lawyers ask for these documents to try to prove what happened during the project: 

  • Was there an engineering bust? 
  • Were the subcontractor’s materials deficient? 
  • Was the cement contractor three weeks behind schedule? 

Prepare for the dangers of sending informal project communications by establishing a company policy for project communications. 

Because the answers to litigation-related questions are often in the documents, the project team sending certain types of informal communications can cause issues. Sending back a quick “yes” in response to a text message inquiring about whether a certain supplier can dump gravel near the project entry makes sense. But usually, sending jokes, explicit materials, forwarded emails with stories and photos, or other personal communication does not make sense.

Regardless of the intent of those emails, they can be used by opposing counsel to create a poor narrative in front of the judge.

The situation is simple. Coworkers work long hours, become friends and are informal with each other. They exchange inappropriate jokes while on site, and then slowly become more comfortable sending those materials via text message or email. The situation creates a problem for multiple reasons. 

First, those communications do not belong in the workplace and can create a hostile work environment. In addition to some of those communications being in poor taste, they also have the potential to create liability for the company with regard to its employment practices. 

Next, the informal communications are part of the record of what the project team was doing that day. Once given to the other side, those text messages and emails can show that the project team was more focused on exchanging inappropriate material than it was on the project. That narrative, even if not accurate, can be compelling. The narrative will be simple: “Your honor, the big project bust occurred on April 5. On that day, the internal text messages between the subcontractor show no one could find the project manager to weigh the materials, and the subcontractor was more focused on reading a forwarded email that was 10 pages long and contained explicit photos than it was on resolving project issues.” 

The narrative is not ideal or professional. Informal project communications can also inadvertently point opposing counsel in the direction of someone may not have otherwise have been on their radar. For example, naming fired personnel and gossiping about the reasons for their departure. 

This gives opposing counsel the ability to phone the discharged employee, who does not have any loyalty to the company anymore, and ask him about the project from his perspective. 

Luckily, these situations can be avoided fairly easily. Create and enforce specific guidelines for teams as it relates to project communications. Inform them of the gravity of their behavior (e.g., that those communications could be used against the company in court one day). And then enforce company policy. Minor steps like these can help reduce a company’s potential exposure if a project heads to litigation. 


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