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Geoffrey Vance and Heather Heindel were quoted in the Law360* article, "What Construction Attys Must Know About E-Discovery," on how the informality and high volume of electronic communications can jeopardize a client's chance of success.

Software is often used to assist in managing a construction project, and some such programs allow users to save data to the cloud for easy access anywhere they can connect. These tools aim to provide a centralized information storage area, but sometimes people just can’t help themselves, says Heather L. Heindel.

Although certain information might be stored digitally, people still end up downloading and saving files, emailing them to each other and even printing them out to keep at their desk. When combined with extensive email and text communications about a project, those seemingly innocuous actions, tailored to each person’s preferred work style, “really makes the volume of data explode exponentially,” Heindel said.

And while people might think they’re simply sending the same information around, what passes as identical in a layperson’s world doesn’t necessarily do so in the realm of e-discovery, according to Geoffrey A. Vance, chair of Perkins Coie’s e-discovery services and strategy practice.

Just having the same file in three different places with three different names meant to fit three people’s preferred filing systems creates three distinct “originals” when it comes to e-discovery. Sussing out what’s actually different requires time and people, sometimes experts, and that costs money that might be better spent on ensuring you and your client prevail, Vance said.

“What keeps us up at night is there’s too much out there,” Vance said. “Our main goal is to reduce the amount of data lawyers have to look at.”

A simple strategy is to ensure that the subject lines of emails about a project or issue are consistent, which few people seem to do, Heindel said, referencing a New York federal magistrate judge’s March 2009 decision in William A. Gross Construction Associates Inc. v. American Manufacturers Mutual Insurance Co.

As for software, if it allows cloud storage, it’s beneficial to link to that data rather than physically sending it around, Heindel said. It may also be good to limit electronic communications to only what’s absolutely necessary, either by using the phone more or not replying to everyone on an email thread, Vance added.

He also said companies don’t have to hang on to data they’re not required to keep and that good data destruction practices can save lawyers time in e-discovery.

“That will mean lawyers won’t get a terabyte of data from clients, but a gigabyte,” Vance said. “That’s less information that can distract us and more we can focus on.”

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