Dallas Bar Association

To Document and Preserve: Practical Advice for Construction Clients

by Paul A. Derks

The lifeblood of construction cases is documentary evidence. Often damages, and even injuries, are not discovered or disclosed until after the passage of significant amounts of time. Documentation of work events and activities on a site usually provides the best evidence available to a construction lawyer. How well your client documents and preserves activities and interactions on the worksite can significantly impact construction claim results.

Regardless of whom you represent, practical advice should be given to your client to ensure proper documentation of activities taking place on the worksite. Today’s technology offers many viable and affordable options for documenting, disseminating and preserving key information. A culture of documentation also causes workers to be more attentive and diligent in observing safety rules because they know “big brother” is watching them.

Smartphones are pervasive but often not utilized to their full potential. A smart phone’s camera and video tools can record daily site photographs and videos. This evidence provides a wealth of information. Documentation of construction progress can be used to pursue or defend claims that materials were not installed correctly. Dated photographs can support or rebut delay claims. Photographs of construction equipment can buttress or defeat allegations it was unsafe or lacked proper warnings. Sequencing of construction can be discerned through daily photo logs. Safety meetings can be documented and, if videotaped, replayed later for new hires so they are privy to specific jobsite hazards previously discussed.

Visual evidence impacts jurors as well. Jurors expect to “see” the event or defect being discussed in Court. The phrase, “a picture is worth a thousand words” has endured through the years for good reason. What a person can analyze with their own eyes will impact their opinions far more than hours of testimony. 

If an accident occurs, the camera and video capabilities on the phone can be used to document then existing conditions on the site. Most phones also have applications which allow users to digitally record statements. If the phone does not have this application, it can be freely downloaded. Immediate documentation of site conditions, equipment used, and the taking of statements from witnesses often determinatively decides the ultimate result of an injury claim.

Digital cameras are also very useful in documenting construction projects. They are cheap and offer the ability to store significant amounts of photographs and videos at a low cost. Higher end cameras allow users to dictate observations which are digitally attached to the photographs being taken. When reviewed later, a user can listen to real time observations in conjunction with viewing the photographs.

However, no amount of documentation is of assistance if the client is not diligent in preserving it. Many lawyers have been faced with the client who “lost” the project file, whose laptop, camera or phone was lost or stolen, or whose computer system “crashed.” Documentation of conditions only works if the data is properly preserved. Luckily, many cheap storage options are available which effectively safeguard large amounts of data.

Clients should be counseled to have a system for depositing information into a central location. This can be as simple as requiring daily or weekly data dumps into a project folder on a centralized server. Subfolders should be created as the project progresses so the data can be easily located. If the client does not have a server, an external hard drive can be purchased. An external hard drive can be connected to a local computer through a USB cable. Reputable companies offer various models with different storage capacities. You can obtain more than a terabyte worth of storage for less than $100. Such a drive can easily store over 150,000 high quality photographs with room to spare for contracts, e-mails, correspondence, videos, plans, specifications and other documents.

You can also use external hard drives in conjunction with Wi-Fi modems to create a central archive which can be remotely accessed when workers log into the office’s Wi-Fi system. Many Wi-Fi modems offer the capability of connecting the external hard drive directly to the modem. All users connected to the Wi-Fi can then access and save data to the Wi-Fi connected hard drive. All information should be periodically backed up to a secondary drive to prevent loss. Many programs are available which automatically backup data to a secondary drive.

Documentation and preservation of evidence is the key to winning the battle in construction litigation. Advising your clients to document, disseminate and preserve key information will protect them and make your job easier if a claim arises.

 

Paul A. Derks is a partner with Fee, Smith, Sharp & Vitullo, LLP and can be reached at pderks@feesmith.com.

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