Technology is constantly evolving the construction and engineering industries. Recent trends include:
- Big Data – using historical big data to improve efficiency
- Artificial Intelligence (AI) – leveraging automation to increase productivity
- Building Information Modelling Technology – reviewing projects in real time to improve planning and increase efficiency
- Mobile and Cloud Technologies – allowing real-time data sharing to improve collaboration and
- Blockchain Technology – improving transparency in transactions
How do these evolving technology trends fit in when a construction project results in a dispute?
Construction projects are typically long-running, highly complex transactions plagued by uncertainty. It is often impossible to resolve every detail and foresee every contingency from the outset, making the industry one of the most conflict-ridden. When disagreements arise, it’s arguably more costly than it is disruptive to every organisation involved.
In the Middle East, the most common form of dispute resolution in construction and infrastructure projects is arbitration (as opposed to the UK where adjudication is more common). There are many advantages with this form of alternative dispute resolution: privacy, speed, flexibility of process and a commercially minded tribunal with subject-matter expertise. However, the associated costs are much higher than in litigation, mediation and adjudication.
In this type of arbitration, document review costs must be considered. Although disclosure (or “discovery”) does not necessarily occur in arbitration, reviewing documents to build claims or defence is required. Once a Redfern schedule has been produced, it’s vital that all documents relating to each request are reviewed and provided to the opposing party. These exercises and processes tend to account for roughly 40% of the overall arbitration spend due to the size and document types associated with these projects. Fortunately, there are technologies and experts available to significantly reduce the time and cost burden.
To demonstrate implementation of legal technology to navigate complex data in construction arbitration, below we have outlined a recent case where TLS advised an international law firm on a large delay claim in respect of the construction of an airport.
The law firm was on a tight deadline to submit the statement of claim. Once they understood the contractor’s IT infrastructure, there was around seven terabytes of data from a variety of disparate sources. This included roughly 15 million documents, such as drawings, minutes of meetings, site access, invoices, letters and email correspondence, between subcontractors and the engineers. The first and most important stage was the initial scoping call with a TLS forensic expert. This was required to identify the various tools required (on-site and remotely) to defensibly collect from the numerous data locations.
When collecting the data from Aconex, a construction management software, TLS deployed a bespoke Aconex collection tool. This allowed for a targeted collection and for mailboxes to be collected whilst maintaining attachments and family relationships. A report was also produced post collection to identify any errors encountered – something that cannot be done without this specific tool.
Once all of the data was collected, TLS’s forensic expert produced reports which identified the file types that should not be processed. These included drawings and files from construction-specific software and proprietary file types. Since the files were sizeable, this step was invaluable, as it helped avoid significant processing and hosting costs.
The most important part of the process when dealing with large data sets is removing as much irrelevant data as possible. During this stage, TLS positioned a consultant at the law firm’s office for two days. This allowed the experts, the contractor’s legal and commercial team and the lawyers to work together with the TLS project manager to reduce the scope of the data to less than 300 gigabytes – a near 96% reduction. TLS’s proprietary ediscovery management technology, Digital Reef, then identified a large amount of Arabic documents. Through search term consulting and translation, the documents identified were found to not be relevant to the claim.
The law firm wanted to identify specific correspondence between developers, contractors, engineers, architects and experts to establish the strength of claims and witness evidence. Digital Reef’s Pre-Review Analytics® provides reports on the data and its trends. Material information was identified, and irrelevant data was culled to avoid wasted review hours.
TLS hosted the data on Relativity. Rather than building traditional search terms, TLS experts designed search terms pertaining to multiple Redfern requests. The strategy was designed such that documents responsive to multiple requests were not duplicated across the review universe. Three iterations were run before the terms were finalised, and the documents were batched out per request. TLS then used near-duplication analysis to batch the documents out.
Analytics were applied to streamline the data set further. Email threading reduced the documents for review by 30% without compromising any unique information. Continuous active learning models prioritised the documents by relevance, ensuring the most important documents were seen first. This allowed the review to reach a point of diminishing return and avoid lengthy, costly review of irrelevant documents.
TLS provided a team of contract paralegals to assist with the first-level review. This allowed the senior lawyers to focus on strategy and more important aspects of the case. The law firm had access to the reviewed documents instantly due to Relativity’s batching function, avoiding further delays.
It is imperative to know that, regardless of the size of the claim, the amount of data relating to the construction and infrastructure industry is at its highest ever. It’s a crucial stage of a dispute that cannot be avoided. Huge amounts of time and money are associated with review and onboarding of a document management and legal technology firm. Utilising the right tools and expertise from the onset will ensure that you are in the best position to bring and defend claims without the chance of missing vital evidence through inefficient document review.
