Construction Claims: Effective Discovery Tactics Best Practices for - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A Construction Claims: Effective Discovery Tactics Best Practices for Document Collection, Review and Production WEDNESDAY, JUNE 26, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Andrew L. Greene, Partner, Perkins Coie , Seattle Brendan J. Peters, Partner, Perkins Coie , Seattle The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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Effective Discovery Tactics in Construction Claims Brendan Peters 206.359.8132 BPeters@perkinscoie.com Andrew Greene 206.359.3234 AGreene@perkinscoie.com June 26, 2013

Discovery is Discovery  Typically the most expensive part of the case  Rules are the same:  Ground rules – Rule 26  Requests for Production – Rule 34  Depositions – Rules 27, 28, 30, 31, 32  Interrogatories – Rule 33  Note: California Form ROGS – Construction Lit. (Form DISC-005)  Requests for Admission – Rule 36  Expert Discovery – Federal vs. State Rules  Use of Rule 29 (stipulation)  Failure to Make Discovery – Rule 37  So, what's different . . . 6

Construction Discovery is Different  Number and Type of Parties  Variety of Claims and Legal Theories  Different Categories of Documents  Technology Issues  Prevalence of ADR  Volume of Data  E-Discovery Issues 7

Typical Design-Bid-Build Structure Owner/ Sureties Lenders Developers Owner Design Contractors Professionals Architect Contractor Sub-contractors Sub-consultants Sub- Suppliers consultants 8

Issues with Number and Types of Parties  Third Parties  Subpoena Issues  "Informal" Discovery  EDGAR  (http://www.sec.gov/edgar.shtml)  FOIA  Contractor licensing online databases  (Example: https://fortress.wa.gov/lni/bbip/)  Secretary of State – online corporations search  Licensing Boards (design professionals, contractors)  PACER / Westlaw docket search  http://www.pacer.gov/  Joint Defense / Common Interest Agreements  Former employees of corporate adversaries 9

Know Your Claim  Contract claims and discovery  "Trust but Verify"  Contractual audit or accounting provisions  Required contract submittals  Discovery limits by contract  Jay Brudz & Jonathan M. Redgrave, Using Contract Terms to Get Ahead of Prospective eDiscovey Costs and Burdens in Commercial Litigation , 18 Rich. J.L. & Tech. 13 (2012)  Specific discovery for tort claims  Standard of care claims – relevance of performance on other projects  Damages  Specific discovery for statutory claims  E.g., multi-unit residential inspection – ex. RCW 64.55.030 10

Types of Documents  Contracts  Entire contracting chain (prime, subs, suppliers, consultants)  General and supplementary conditions  Drawings  By Phase (schematic, design development, and construction documents)  Bidding Documents  Shop Drawings  As-Built Drawings  Specifications  "Front End" – Divisions 0 and 1  Technical Specifications  "Change Documents"  Change Orders  CCDs  Minor Changes in the Work (ASIs)  RFIs  Work Orders / Work Directives  Field Sketches 11

Types of Documents  Submittals  Schedules  As-planned schedule  As-built schedule  Fragnets  Cost-loaded  Insurance  Bonds  Payment documents  Pay applications and backup  Lien releases  Schedule of values  Progress reports  Meeting minutes  Correspondence  Third-party documents  Lender inspections / reports  Government agencies  Practice Tip: Consider early Rule 30(b)(6) deposition 12

Technology Issues  CAD  Multiplicity of software platforms  Layers  Viewers  Models  BIM  Multiplicity of software platforms  Tracking changes (no more clouds?)  Schedules  Viewers  Metadata  Odd-ball file types (ex. surveying data collectors)  Emergence of forensic discovery consultants  The future (the "cloud," tablet project management, etc.) 13

Prevalence of ADR  Mediation  Mediation communications  Arbitration  AAA Construction Industry Arbitration Rules  Regular Track R-24 – limits discovery  Large, Complex L-4, L-5 – discovery by agreement with arbitrator limits  Fast Track F-9 – virtually no discovery  Discovery as potential waiver of ADR 14

Expert Discovery  Fed. R. Civ. P. 26(b)(4)(B) & (C)  Protection for draft reports  Protection for communications between expert and attorney  Work product issues (consulting vs. testifying experts)  On-site claims consultants 15

Testing and Inspections  Site Inspections under Rule 34(a)(2) – “requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon”  Destructive testing issues  Testing protocols and use of Rule 29 16

Volume of Data  Where is the data?  How much?  What type?  Triage approach  Early Rule 30(b)(6) deposition to document custodian  Review of hardcopy documents in person before scanning  Rule 34(a) – request to "inspect" and "copy"  Rule 34(b) – "party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request" 17

E-Discovery 18

What is E-Discovery?  The production of electronically stored information in civil discovery  And:  The process by which electronic data is requested, located, secured, searched, and produced 19

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E-Discovery  Discovery includes e-discovery  2006 Amendments to the Federal Rules of Civil Procedure address e-discovery obligations ("electronically stored information" or ESI) explicitly in Rules 16, 26, 33, 34, 37, and 45  Not addressed specifically in many state civil rules — but commonly (if not universally) accepted  E-discovery continues to be a rapidly evolving area of law and can have extreme consequences for non- compliance 21

E-Discovery Decisions Can Be Extreme  Arthur Andersen, LLP v. United States , 544 U.S. 696 (2005)  Zubulake v. UBS Warburg, LLC (multiple opinions)  Micron Tech., Inc. v. Rambus Inc. , 645 F.3d 1311 (Fed. Cir. 2011)  Hynix Semiconductor v. Rambus Inc ., 645 F.3d 1336 (Fed. Cir. 2011)  And they continue…  Victor Stanley v. Creative Pipe, Inc. (multiple opinions)  Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Amer. Sec ., 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (Zubulake Revisited) (reversed in part)  DaSilva-Moore v. Publicas Groupe , 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012 ) 22

Construction & E-Discovery William A. Gross Constr. Assoc., Inc. v. American Manufacturers Mutual Ins. Co. 256 F.R.D. 134 (S.D.N.Y. 2009) (Peck, Mag. J.) 23