The Wizard Behind the Curtain

One of the most memorable scenes in the Wizard of Oz was when we finally got to meet the notorious Wizard himself. When Toto pulled the curtain back, we saw that he wasn’t the brooding, intimidating figure that his image and reputation led us to believe he was. Instead, we saw a small, mild mannered gentleman who looked incapable of harming a fly. With a simple tug of a curtain, the grand image was blown.

Now, what does the Wizard of Oz have to do with construction and, for that matter, any business? A lot. As paperwork has evolved into computer-work, there has been a shift from focusing solely on paper documents to investigating electronically stored information ("ESI"). In litigation and arbitration, attorneys are not limiting discovery to paper documents. They are investigating electronic versions of e-mails, Word documents, spreadsheets, voicemails, and other forms of ESI.

Why? Because just like Toto pulled back the curtain on the Wizard, ESI allows the curtain to be pulled back on your paper file. There’s a lot more to every document, spreadsheet, and e-mail than just the words on the page. Buried in every file is data about who created it, who modified or accessed it, when it was created, who was bcc’d, etc. ESI reveals spreadsheets formulas that would otherwise generate raw numbers on paper. And those redline changes and comments on your Word document? Well, just read this business plan to find out how not to get a project funded. Then imagine reading a contractor’s bid that unknowingly included all the comments about the corners they can cut.

This isn’t meant to scare you back to a stone tablet and chisel, but it is a cautionary tale. Before you send that contract to the other side, be sure you’re not including your own personal commentary. That e-mail you thought you deleted–it’s still resting comfortably on the company’s server. You make efforts (and probably spend good money) to keep your confidential information confidential. Don’t accidentally hand over the keys to your file room. When it comes to ESI, what you see isn’t always what you get.