Construction Law

COVID-19 caused many changes in how the construction industry conducted business and made progress on projects while complying with required safety protocols.  As with most industries, virtual meetings for construction projects have become the normal course of business, including virtual project meetings, design meetings and site visits.  Unfortunately, because many safety issues arose due to COVID-19 and companies were overwhelmed with trying to continue projects during a pandemic, the impact of virtual meetings on litigation, existing or potential, has not been generally appreciated or addressed.  As companies have more normalized the use of virtual meeting platforms for projects, the use of the technology is not likely to disappear post-pandemic. As such, the need to address policies and procedures for the use and preservation of meeting information should occur to avoid adverse impacts in litigation and to avoid causing unintended legal liabilities.

For those companies familiar with discovery in litigation, the need to preserve all information related to pending lawsuits or potential litigation may already be part of the company’s policies and procedures.  However, companies should review their information retention policies with their legal counsel to ensure that the policies and procedures adequately address virtual meeting information as well as to obtain adequate guidance on the company’s practices for utilizing virtual meetings.

In reviewing and drafting policies and procedures to preserve information for pending or potential litigation and to avoid litigation on a project, companies should also consider identifying the following for all involved on a project:

• The virtual meeting platform to be used by employees or by other companies and their employees on a project. (Selecting and requiring the use of one platform by all persons and entities on a project creates one source for virtual meeting information, which provides some protection in maintaining and accessing the information in the event of litigation. This information should be part of any pre-construction planning and provided to all contractors, subcontractors and vendors on a project.)
• The assignment of a work email controlled by the company and a mandate to only utilize that work email for virtual meetings. (Often on projects such as pipeline projects, employees are hired for a particular project and utilize their own personal email. This practice could limit the ability for companies to access not only emails regarding the project, but also information on virtual meetings as the meetings are tied to email addresses.)
• Information on the functions of the selected virtual platform, including how meeting history is maintained and should be maintained.
• Designating and identifying the company administrator for the chosen platform and training on how to maintain all meeting history. (As identified above, individuals are often hired per project and when the project is over, they move on and their “presence” at the company is removed. Deleting a user in some platforms will delete meeting history for that person as well. Having a well-trained administrator who can properly maintain records without removing individuals is therefore necessary.)
• Identifying when virtual meetings versus in person meetings should occur, including a policy limiting the use of virtual meetings where a hands-on inspection or site visit is mandatory.
• Information on required personal conduct, language and appearance on virtual meetings. (While this is likely part of the company’s general policies, re-emphasizing such requirements is a good practice as employees working from home may become lax and issues that might give rise to claims or litigation could result.)
• A strict policy on when and if meetings may be recorded, and when and if an employee can be a party to a recorded meeting, including, if applicable, a notice that should be provided prior to recording any meeting and a procedure for obtaining written consent from all participants. (As discussed below, recording meetings may in and of themselves raise legal issues that a direct policy can avoid.)

An additional consideration for companies, both for evidentiary issues in litigation as well as avoiding criminal action and civil litigation, is the recording of virtual meetings.  Depending on the location of your company or the project, federal and/or state wiretapping laws could impact the rights of the parties to a virtual meeting which may be recorded.  For example, Pennsylvania is a two-party consent state which requires that all parties on a call or conference to give their consent for the conversation to be recorded, while West Virginia is a one-party consent state. Video conferences take place across multiple state boundaries, so determining what laws apply to the jurisdiction or jurisdictions in which the conferences are occurring must be taken into consideration before any video conference is recorded.  Some platforms provide a banner advising that a conference is being recorded, while others do not provide a well stated notice that recording is occurring.  Additionally, even the banners may not provide proper notice to all recipients.  A clear and concise policy will enable the company to address the issue in a consistent manner and avoid potential liabilities. 

Many potential impacts to litigation, including discovery obligations, exist with the use of virtual meeting platforms and as this technology continues to be a main source of business communication and collaboration, and the law surrounding its use in the construction industry continues to evolve, companies should review their practices and policies regularly with counsel in order to protect themselves from potential adverse consequences. 

To learn more about this topic, including how to implement these practices and procedures for your company, please contact a member of the Construction Law team at Bowles Rice.