Written communications are necessary to any well managed construction project.  Often, our thoughts and intentions are communicated electronically, either through email or text messages.  The purpose of written communications are twofold – to clearly express the position taken to the recipient and to create a record of the position taken.  To a lawyer, the record created is a potential exhibit in any litigation.

A large component of litigation is discovering the documents and records of both sides to the dispute. Every document and record, including electronic records, may be used as potential exhibits.  Lawyers have wide latitude to access these records.  Recently, the focus of such discovery has been on electronic data, including emails and text messages, as these convenient communication techniques provide a treasure trove of information.  While the gathering of this electronic documentation can be daunting in and of itself, the issue can become even more complicated if an employee utilized personal email accounts or cell phones to transmit information about the project.  As a result, these personal accounts and devices will become subject to a discovery request, and lawyers can achieve unfettered access to the personal communications of an employee.  Even though personal accounts and devices surely contain conversations with spouses, children or other sensitive matters, if they were used to transmit information about the project, a lawyer can compel their examination, potentially exposing sensitive information.

So how can you avoid your personal emails and text messages becoming subject to discovery?  The easiest method is to avoid using your personal email and cell phone for professional purposes.  Good in theory but not so good in practice, right?  Some smart phones are developing technology in order to separate work and personal data that may aid in this prevention.  But the safest way to keep your personal information out of the courtroom is to not use personal devices for work purposes.