Credit: kosssmosss

Jon Fowler
Secretariat, London

Like many sectors, the construction industry has seen a tremendous increase in the use of technology in recent years for health and safety, project planning and management, progress monitoring, contract maintenance and management, and cost control. Two common threads have evolved as a result. First, these technologies generate electronic data – lots of it. Second, this electronic data has the potential to become an increasingly critical area of focus in conflicts regarding such issues as construction delays and cost overruns caused by delays and other factors. Where these issues occur, legal disputes are potentially quick to follow. The construction industry, and legal advisors, are increasingly aware that where advanced technologies gather and maintain their data, the question is increasingly being posed to them as to whether or not they understand what is held in their electronic data and how best to use it in their own favour. The electronic data will contain a dizzying volume of useful and not so useful information that will need to be analysed by experts and presented in an arbitration or a courtroom where there is a dispute. Inevitably, this data will become a key factor in disputes that could be worth millions or even hundreds of millions of dollars.

The collection, processing, and hosting of electronic data in the event of a dispute (eDiscovery) is a relatively mature global industry and for many years has been focused on more traditional office document types such as word documents and spreadsheets, as well as communications data (predominantly email). In recent times, the growth of different technologies producing non-text data has seen the available technology adapt to deal with the resulting requirements. In construction in particular, a new crop of automated or automatic electronic data-collectors that have proved themselves valuable in project management are also producing data which could become relevant in a dispute scenario, and therefore should be taken into account when planning for an eDiscovery exercise. For example, drones are being used to survey construction sites, with video transmitted to stakeholders anywhere in the world.^[1] These videos can capture not only what’s happening at a given moment, but allow comparisons over time to help in monitoring progress. In future, we are likely to see an increase in advanced drone capabilities such as thermal imaging and site mapping, both adding to the types of data that may be demonstrative in a conflict. Wearables such as hardhats are now no longer just providing physical protection to the wearer.^[2] ‘Smart hardhats’ are now being used to monitor employee location and productivity, as well as safety applications with their ability to alert managers or emergency responders in the event of an accident or other incident and provide employees’ exact locations. Advanced robotics increasingly play a role, too.^[3] Robots can be used for physical building processes such as laying bricks and other repetitive tasks, and also for site monitoring: a robot can ‘walk’ an entire site, relaying detailed video and progress information back to head office without the need for a human companion. ID card and other access-related technologies keep track of who comes and goes on a jobsite. Data collected by technologies like these can answer questions like: Were there enough workers on a task? Who were they? Were they doing what they were supposed to be doing? Did they have the right equipment and materials? These questions and others – answerable by data collected and maintained – can provide information on delays and increased costs valuable to either side in presenting their case in a dispute.

Looking towards the near future, we expect these new and diverse types of electronic data to be aggregated in existing common data environments (a platform that centralises data from different sources) for ease of maintenance, security, and analysis. When a party makes requests for documents, data from these technologies will need to be considered alongside the more traditional data sources when litigation is anticipated, a litigation ‘hold’ may be requested, with potential litigants expected to comply. This means that appropriate data security, storage, and chain-of-custody rules will apply. The point is that it is no longer enough for construction businesses to use these new tools to generate process efficiencies and cost effectiveness; the cleverest businesses will understand that their electronic data is not something to be left and forgotten. If it is mismanaged and/or neglected, it will lead to negative outcomes. Instead, this data and its contents should open whole new methods to gain a key or critical advantage when disputes occur. Businesses must begin to think in terms of this data being used in ways that could either save or cost them millions.

Benefits of embracing new technologies

Whilst there are considerations to be aware of when embracing these new technologies, the examples of benefits can bring critical value.

Increased productivity

Modern technology can automate repetitive and sometimes dangerous physical tasks, freeing up time for employees to focus on project management and strategy. While this can be a change in team structure, it can drive greater efficiency, safety, and improved morale.

Improved health and safety

Many of these technologies are designed with health and safety front of mind, with other benefits presenting themselves as useful side effects.

Pre-empting potential issues

Harnessing the data generated by new technologies and applying technology such as machine learning and Artificial Intelligence (AI) can help you to identify patterns that may be missed by humans. Recent examples we have seen include patterns and frequency around email communications that shed light on unusual and illicit comms traffic to outside players and manufactured invoicing benefitting individuals at the detriment of the client. We have also seen the technology cast a spotlight on purchasing inefficiencies that included us demonstrating that the client had a number of automated repeat orders, at great expense, for items that were no longer being used in their service offerings. This technology, when used in the correct way, can be extremely powerful and will help spot potential issues before they become problems and allow for proactive solutions to be put in place, avoiding delays and reducing overall cost.

Improving decision-making

Modern site technology can provide real-time data and insights, allowing for more informed decision-making.

Competitive advantage

The move to new technologies is gathering pace, and slow adopters risk getting left behind by their competitors. As highlighted throughout this article, the data generated from these technologies can be extremely beneficial both for the success of a project, and in the event of a dispute.

Improved work-life balance

In some roles, this technology can enable remote working, flexible schedules, and other benefits that can improve employees’ work-life balance. This can lead to greater job satisfaction, lower stress levels, and improved mental health.

Considerations on data storage and management

It is important to be conscious of how any data generated is stored and maintained – not only for resolving a future conflict, but for analysis by experts who can use the data as a basis for their evaluation. The following points are not unique to the data generated by construction technology, but are worthy of consideration.

Data integrity

Data should be stored in a secure manner to ensure that the information is accurate, complete, and reliable. This includes proper backup procedures, version control, and access controls to ensure that only authorised personnel can make changes. Additionally, are there logs or audits that contain details of the physical device assets?

Data retention

The retention policy for the data should be established and followed to ensure that data is kept for the required length of time in compliance with legal and regulatory requirements. In my experience, this point can often be neglected. Too frequently, business or IT policies are not adhered to or maintained because of many reasons. It is frequently the neglected sibling to other policies, processes and/or business needs that are deemed more pressing or important when it comes to time or resource allocation. This is a mistake that always has negative effects on dispute resolution.

Metadata

Metadata provides information about the data, including when it was created, who created it, and any modifications made to it. Traditional information sources can be critical in establishing the authenticity and integrity of the data in a legal dispute. As newer technologies develop in the construction space there are likely to be new types of metadata to consider which will create an interesting challenge.

Access controls

Access to the data should be restricted to authorised personnel, and appropriate access controls should be in place to ensure that the data is only accessed for authorised purposes. This includes access to the physical storage media and access to the data through software systems. It is important to remember also that the data collected may be considered individuals’ personal information and therefore subject to data privacy regulations. Know what those regulations are and what compliance protocols should be adhered to.

Data backup and recovery

Regular backups of the data should be performed to ensure that the data can be recovered in case of loss or corruption. The backup process should be designed to preserve the integrity of the data and provide a complete and accurate copy of the data. This is another area where we often encounter neglect when collecting and analysing clients’ data. Again, this only leads to negative outcomes if the data is not correctly backed up and stored with its future integrity in mind.

Preservation of evidence

The data should be stored in a manner that preserves its evidentiary value. This includes preserving metadata, ensuring the integrity of the data, and protecting the data from alteration or destruction. In a dispute scenario, a legal hold may need to be placed on data to ensure it is not deleted as part of normal data management procedures.

Documentation

Proper documentation should be maintained to provide a clear and complete record of the data, including its source, processing, and any analysis performed. This documentation can be critical in establishing the reliability and validity of the data in a legal dispute or analysis.

Change is continuous

Expect continual changes in the technology that will provide even more complex data in the future, and with those changes will come more complex regulation and requirements placed on its users.

As the use of technology in the construction industry continues to mature, we should expect continual changes which will provide even more complex data in the future. As technology continues to advance, new types of data will emerge, and existing data sources will become even more complex. Being nimble in recognising these new complex data types will be key.

The more ‘smart’ and online devices become, the more data they will generate. This data will be more diverse and complex than before, creating new challenges for eDiscovery and other data professionals.

As a result, we can also expect complex regulation and requirements to be placed on users of these technologies. Governments are already introducing new regulations to protect personal data (such as GDPR and CCPA), and these regulations are likely to become even more complex as new data sources emerge.

Navigating these complex regulations and requirements will require businesses to invest in robust data governance policies and procedures. This will require a deep understanding of the data they collect, where it is stored, and who has access to it. It will also require ongoing training and education to ensure that employees are aware of their responsibilities and obligations when it comes to data privacy and security.

It can pay to be proactive

There are experts in construction technology and law who may be able to help you establish practices to ensure data security in all areas of your business. Being proactive about your data governance and security can save you time and money when a dispute happens.

Establishing practices and policies around good data hygiene and security is paramount for businesses to ensure that all relevant data is properly preserved and accessible in the event of a legal dispute. This can help avoid the costs and delays associated with data discovery and the engagement of experts and lawyers.

In an ideal world, risks can be identified and mitigated before a dispute happens; having a robust data governance and security programme is a key part of achieving this aim. By implementing best practices for data management, businesses can reduce the risk of legal disputes, improve their overall operations, and save time and money.

That said, even with the best data governance and security practices in place, legal disputes can and will still arise. In such cases, having a solid understanding of the data that is relevant to the dispute and the ability to access that data quickly and accurately can be critical.

It is obviously true that data is crucial in all areas of business, and this is increasingly true for the construction industry. While data security is critical for construction firms, those firms that have moved on from merely ensuring their data’s integrity, software/hardware maintenance and correct procedures around governance, and into how best to extract the key facets of their data are primed to see the benefits of this work during a dispute.

Conclusion

The construction industry is not immune to the technological change taking place across business and society, and in fact in some ways is playing catch up. The accelerating adoption of technology to improve health and safety, speed, and efficiency should be embraced, as should the value of the data created by it.

The creation of this data brings its own challenges. It needs to be stored and managed correctly and securely, data privacy needs to be carefully considered, and it could now play a major role in the outcome of any project disputes.

In my view, however, the benefits outweigh the risks, and I look forward to seeing continued adoption growth as an increasing number of technologies appear.