Proprietary Construction Software Contributes To $52-Million Verdict

When I was handling internal project controls during construction of the $500-million research and development campus construction for Pfizer, I had to first be “Pfizer-ized.” A fellow colleague from the East Coast was flown out to our offices in La Jolla to set up, configure and train me on a software program known as Expedition. The software did not help us in our endeavors one bit, and instead, managed to frustrate a lot of people I worked with. Worst of all was the proprietary data format which prevented us from easily sharing information — especially within the company among key stakeholders! This story from ClaimKit’s Chris Cheatham did not come as much of a surprise to me…     [Ed.]

Don’t Make a $52 Million Construction eDiscovery Mistake!

Recently, the ENR RiskReview newsletter appeared in my inbox. The top headline read: “How Jacobs Engineering and Insurers Lost a Massive $52-Million Verdict.

“There’s a document mismanagement story here,” I thought to myself. I have no idea why I had that thought but I plowed into the article. And there it was on page two:

About halfway through the trial, Jensen was called to testify by Lax and cross-examined by Victorville’s legal team. Jensen testified that key documents could only be found in the project’s Expedition file-sharing database but that these documents could no longer be recovered and were no where else.

Among the problems faced by Carter & Burgess, the project’s Expedition database account was closed and a disk was damaged. How convincing Jensen was remains unclear.

Luke, Hack and Turner seized on this evidence and testimony to create the impression that Carter & Burgess was, at best, unreliable and, at worst, deliberately destroying or mislaying trial evidence.

When Victorville’s attorneys delivered a PowerPoint-assisted summation for the jurors, the troubles with the pro formas and Expedition database were labeled Jensen’s “Big Lie.”

I am going to spend a lot of time breaking down this construction ediscovery disaster in coming weeks. But here are a few quick thoughts:

  • Collection of data is incredibly cheap and easy and should be the first step taken when claims (not litigation — claims!) are initiated.
  • Too many construction and surety lawyers wait until the last possible second to collect data. Collect it early and often.
  • Interview your custodians to find out where key documentation is stored.
  • Construction lawsuits often take five to ten years to get to trial. If you wait that long to collect your contractor’s data, you may find that there is nothing left to collect.
  • For surety claim professionals and attorneys, you face an even great threat that your data may disappear if your principal disappears.

Big Construction Data is a Big Deal. I’m not sure attorneys realize that yet.

Construction Data is Delicate — Get Your Data

What’s an Expedition file-sharing database?

That was my first question when I read about the $52 million verdict that was the result, in part, of a document management mistake. The defendant in the lawsuit testified that they no longer had access to a file system called Expedition that contained key documentation; opposing counsel labeled this the defendant’s “Big Lie.”

It turns out that Expedition, which is now called Primavera Contract Management, probably did contain the defendant’s key documents:

Oracle Primavera Contract Management® is a document management, project cost management and project controls solution that provides visibility into contractor performance, enables timely payments, facilitates collaboration, and streamlines contract and document administration.

That does not sound like something you want to lose access to.

According to the ENR article, the defendant claimed that the Expedition database was closed and that the disk was damaged. I’m not sure I understand the first assertion because a new Expedition license likely could have been purchased.

The second issue — a damaged disk — is a much more serious and detrimental issue. If the disk (most likely a hard drive) failed, it may have been impossible to recover the data.

My previous point still stands: Get. Your. Data. Now.

Seriously, get your data now.

About the Author

Prior to launching ClaimKit, Chris dredged through claim documents on a daily basis as a construction attorney in Washington D.C. He has worked at some of the largest law firms in the country for some of the biggest companies in the world.

Chris is also a LEED Accredited Professional and has advised numerous companies regarding green building and renewable energy risks and contracts.  He is also a frequent speaker for private companies, public agencies, associations and groups on the topic of green building risk mitigation. 

This article originally appeared as two separate post on the ClaimKit blog and is used with permission here. Part 1, Part 2.

Image courtesy Steve Jurvetson