Email is now the communication method of choice in the construction industry, with more than 90% of project correspondence being via this method [Source: Union Square User Conference Survey Oct 2006]. Many contractual details are being agreed and confirmed in email messages, so the growth in legal responsibilities for looking after, and being able to produce, full email audit trails has increased.

In addition, as part of an industry that works on a project basis, architectural practices store and retrieve information in a different way to most other businesses. This means that standard business tools - such as Microsoft Outlook - do not always serve the best interests of the industry. In fact Outlook provides possibly the worst place to store contacts details and a less than ideal place to store large volumes of emails.

Norman Taylor, Director of Architecture at Capita Architecture, comments on the challenges posed by email management and its importance: "Project e-mail management and sharing was always a big issue in our company.  We tried various options but none proved suitable. Now after working closely with Union Square, we finally have an effective software solution that means project related e-mails are always available to the whole team and are consistently managed throughout the company." 

Email also causes procedural and legal issues for managers, in deciding what exactly to ask their staff to do when they receive or send an email in order to preserve the message and its associated audit trail and how to implement this policy. Furthermore, the challenges for the IT department are enormous. It has to ensure that all email is backed up and does not get lost, not to mention the technical issues of retrieving a specific message or set of messages several years later. 

For these managers there are three areas of concern: 

Accessibility - as a practice are we appropriately and consistently filing emails and making them available to the rest of the team in a timely manner. 

Technology - email systems such as Exchange were not designed to cope with the sheer volume of email that we are all now experiencing - most practices have concerns over performance, backup and retrieval. 

Availability - how confident are we that in twelve year's from now a crucially important email can easily be retrieved after individuals have left the practice and the team dissolved.

Tim Partington, Board Director at Chapman Taylor, one of Europe's largest architectural practices believes this technology offers unique opportunities for the construction industry and will have potentially huge benefits for the company.

He explains: "One of Chapman Taylor's large scale projects can last up to seven or eight years, and in that time a huge amount of information is produced by a large team of people which will also include sub-contractors.  Retrieving a batch of information for a specific purpose has historically been an arduous process and most certainly not an efficient use of employees' time. Looking to the future, having implemented email management software, we want to move away from hard copy filing and have the confidence to recycle paper at the end of the day, with the ability to locate historical project information in seconds not hours."

Dispute resolution

In today's litigious climate, it is essential that all companies operating across the construction supply chain keep a very tight control of all electronic records, not only to manage the project in hand, but also in case something does go wrong. Although internal systems and processes may be in place for managing email, usually if they demand anything more than read and respond, there is a danger that the procedures will get ignored due to shortage of time, technical issues or the vagaries of human behaviour.

In any construction dispute good documentation management is crucial, and email records are absolutely critical to the dispute resolution process. With an accurate and complete trail of correspondence it is possible, and very likely, that a claim can be dismissed or resolved before it gets to court. A full and frank dialogue before the court hearing allows both sides to explain their views and often a solution is found, and agreement reached, at this point.

Disclosure of information

However, if legal action is required then any construction dispute goes through the Technology and Construction Court civil procedures, which require that all relevant information, whether good or bad for your case, has to be disclosed to the other side. As the majority of information is now held electronically, courts will also ask for the disclosure of all electronic records. 

It is a legal requirement that all paper-based and email documentation is retained for up to 12 years, as all relevant information has to be produced in the event of dispute. Failure to retain or retrieve all documentation will not be an acceptable excuse in a court of law.

Privileged documentation

Confusion is often caused by documentation that is deemed to be privileged, and therefore may have to be produced in court, although not necessarily disclosed to the other party.

The concept behind the notion of privileged documentation is that if you are attempting to sort out the problem before it gets to the stage of requiring legal intervention, and this may include making an offer without prejudice, then this information and documentation cannot be used against you.

However, in order to meet the criteria of this category any documentation has to be treated in a way that will allow it to come under the provisions of privilege. As one of the important factors is to keep access to the information restricted then it is important, especially with email information, to keep the circulation list as tight as possible, rather than copy everyone in. If, during the process, the information is revealed to a third party then it must be marked as confidential.

While disclaimers have now become standard practice on most email, the reality is that most of them are meaningless. However in one case out of a 1,000 they could just provide the necessary protection, therefore it is good practice to use them and claim the privilege while having the argument about its legality at a later date.

Litigation process

The starting point for any legal action is always discovery. At the outset the courts will set a timetable for the collation and circulation of all documentation pertinent to the action - both paper and electronic so that each side can see the evidence and prepare their case. Of course, with email communication, it is more difficult to prove that a document has actually been received. Therefore it is important to ensure that the email audit trail is retained and you can demonstrate that the email did not bounce back or suffer from other technical failure. While neither of these methods proves that the contents were read, they do demonstrate that, to the best of your ability, the document was sent and delivered.

Until it becomes common practice within the construction industry to use electronic records exclusively, it is still vitally important to retain paper copies. The paper and electronic copies may tell different stories, so when preparing your case look at both versions to check that they match, and understand the reasons and implications for any inconsistencies, as these may have a bearing on a successful outcome.

Email vaults for safe storage

The use of vaulting technology can provide secure and seamless management of email, by capturing all incoming and outgoing email and providing facilities to securely store and action the email within the project context in a central location.

While a copy may also reside in a personal Inbox, the practice is not reliant upon this copy from a legal perspective. Emails stored in this way are inaccessible to other team members or potentially lost when a member of the team moves on. Even if the original email is deleted by its originator or recipient, a copy complete with its audit trail, remains securely within the vault in the case of a dispute.

With email communication now commonplace across the industry, business and IT managers must become more focused on management, retention and retrieval of emails. Failure to implement 'best practice' processes and the technology to support them will mean that construction companies are unable to defend themselves adequately during a legal dispute which will have a negative effect on both  their reputation and their profitability.