What Does Tiger Woods Have To Do With Construction Law?

You cannot turn on the TV, pick up a newspaper, read a magazine, or listen to the radio these days without hearing the latest chapter in the Tiger Woods saga. We have been inundated with the most private details of Tiger’s personal life, from text messages and voice mails to web streamed confessions and (supposedly) intimate photos. Conversations that were supposed to be hidden have been splashed all over the news for the world to view.

"Yeah, but what does that have to do with construction law?" you may be asking yourself.

Quite a bit.

The construction world (just like any industry), and every construction project in general, is full of casual communications. From emails and voice mails to red-line changes to Word documents and Excel spreadsheets, a significant portion of our communications is done digitally. Which means somewhere, on some computer or some server, there is a copy of that communication. Or, someone else, who we do not control, has a copy of that document that never completely goes away.

In other words, virtually everything pounded out on a computer or left on a digital messaging system has the potential to end up in front of a jury.

Most construction projects of any significant size almost always entail some sort of disputes, such as delays, cost overruns, punch list items, and payments. The majority of these are worked out between the parties, but a few end up in litigation. And when that happens, all those emails become discoverable. So do electronic drafts of documents, and faxes with your scribbled notes. All of a sudden, your private email conversations about a project are being read by an opposing lawyer and could quite possibly end up as Exhibit 1 for a jury to view. Claims against a subcontractor for delay damages are really weakened by a hasty email to a co-worker that admits you were slow in approving change orders because your office was overworked and understaffed.

It has been stated many times before, but it is worth stating again–take the same precautions in sending emails and creating electronic documents that you would take in creating paper communications. Just because you deleted that email, and then emptied your "Deleted" folder, does not mean that communication has gone away. It still probably rests on a server or in the hidden world of slack space on a hard drive.

Just as communications have gone digital, so have lawyers. Attorneys know to ask for emails and images of hard drives (so that the techies can cull through the slack space) because so often, that is where the dirt is. And it is very easy to see the edits and changes in many Word documents, not to mention metadata such as when the file was created and by whom.

Like it or not, our data has a longer life now than it ever has before. Tiger Woods never imagined that his most intimate text messages would end up in a David Letterman monologue, but they have. Don’t make the same mistake with your communications. Before hitting that "Send" button, think whether you would mind having your thoughts displayed as a trial exhibit for a judge, jury, and whole world to read.