Controlling The Electronic Blizzard

By Gerard W. Ittig | Sep 15, 2017




Meaningless emails are a bane. In a construction lawsuit I tried last year, the parties exchanged their project documents, which included more than 200,000 emails each. The exchange was accomplished electronically at a significant cost to both parties because the emails had to be collated and indexed to place the information into a searchable format before the exchange took place. I got a number of CDs containing these reorganized files. Here is a sampling of the information exchanged: “Fine.” “Will do.” “We need to talk.” “10 a.m. it is.” “It’s about time I got these.” 

There were thousands of these emails, many connected to a string of prior, equally uninformative communications. Also, there were many copies as a result of the senders hitting the “Reply All” button. This form of communication is the typed equivalent of casual Friday. 

Buried in this morass were important notes about extra work and project coordination, but even those were cryptic. For example: “I already sent those to you.” “These changes need to be taken care of.” What was sent? What changes? What were the problems behind these notes? 

Don’t stop emailing, but consider these three goals: 1) be careful what you write and that you do write; 2) write emails like you would an old-fashioned letter; 3) code the saved emails so they are accessible. 

Constructing an email

Keep in mind that the following comments are from an attorney who often sees such communications for the first time only after litigation is on the horizon. Two of my regular reactions to a review of these communications are: 1) “I wish this email had not been sent,” and 2) “I wish that an email had been sent.” 

Most of us are fairly responsive when a demand or accusation is made. If you get an email from an owner saying you are late, you will probably respond with a rebuttal or explanation. 

But if a job starts to run late and the owner does not send an accusatory message, what are the chances you will initiate a written explanation for the delay? If an owner requests a change, you will probably reply quickly. But if circumstances require a change, although there is no specific directive, how likely are you to send a note stating that a change did occur? 

A contractor’s silence can be evidence against it. An example: Over a period of months, a general contractor and electrical subcontractor exchanged hundreds of emails over issues large and small. Not one email addressed delays. Later, when the subcontractor raised an issue about late completion being the GC’s fault, this prior silence about delays was used to convince a judge that the claim was an after-the-fact invention. 

Next comes the question of what you write in your emails. The best advice given to me is to use simple, declarative statements to communicate your point. For example: “Our crews were not able to work at level 5 this morning because the mason has filled the floor with its supplies,” or “The owner’s representative told us to reroute our lighting conduit in the cafeteria. Please confirm this change. Until instructed otherwise by you in writing, we will continue as planned.” 

Emails, although written, fall somewhere between a telephone call and a letter—and most of us are still working out the protocols. From a legal perspective, emails tend to be accepted as the most accurate statement of a person’s present state of mind or factual position—the information falls into the category of things blurted out. Whether right or wrong, we take these blurts as more honest than a well-thought-out letter. Also, unlike an unrecorded telephone conversation, you don’t have the convenient argument that you don’t remember saying that with emails. 

Saving the data

An efficient approach to recording weekly meeting minutes is to preserve the paragraph numbering for the topic covered. So, for example, if item three of the first set of minutes concerns grounding high-reach equipment, item three will always have that reference in all subsequent minutes. When item three is resolved, it disappears and is not replaced by another item three. 

As applied to emails, it is often a good idea for each email to cover one topic only, which should be noted in the subject box. This makes it easier to collate the information later if necessary, and there will be a better chance of your collation being complete. 

From a lawyer’s perspective, useful sortation by topic is enormously helpful for setting up subject matter files. From the contractor’s perspective, useful sortation by you can save serious amounts of time and money in the event of claims or litigation. The challenge for you is to apply the same sortation techniques to incoming emails. 

As an aside, many attorneys and judges are still adjusting to electronically stored information. In court or arbitration, it is standard practice to have all or most exhibits produced on paper for evidence. The legal community likes to have exhibits marked by number for identification at trial and for appeal. The cost just for paper reproduction can go into the tens of thousands of dollars. To the extent you can store emails that had a very temporary use—ones that say “OK with me” or “tomorrow is fine”—into a miscellaneous-type file, the better the chance that they will not need to be copied on paper by a reviewer. 

One final note

Where litigation comes into play or appears likely, there is an issue of ­attorney-client privilege that needs to be protected. Under our legal system, a person or company who consults with an attorney is granted a privilege of confidentiality for those communications. The privilege belongs to the client and binds the attorney. Neither the client nor counsel can be legally forced to divulge the content of these communications. 

The privilege is somewhat fragile. If the client discusses these privileged communications with a third party, the privilege may be gone. (There is a body of law discussing who has the privilege in a corporate setting—officers and directors only? Senior employees?—but that issue is for another article.) 

Waiver of the privilege can come about by divulging it, as noted above. Waiver can also arise by inadvertence and negligence. In litigation, with large quantities of documents exchanged, it is not uncommon for an attorney/client letter or email to be mixed with project documents. When this occurs, is the privilege gone? This is a complex question, and the courts don’t have a uniform answer. 

The point here is to be careful. Emails between you and your attorney should be kept in a separate, secured file marked “Privileged and Confidential.” Within your organizations, be sensitive to personnel who receive and have access to copies—limit the distribution.

About The Author

ITTIG, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, [email protected] and





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