Technology building blocks for mitigating risk and impact in construction litigation
By Gráinne Bryan and David Beck14 August 2023
The construction and engineering fields are constantly evolving in response to new technological developments. While these changes bring innovation, efficiency and opportunity, they also introduce risk discovers David Beck and Gráinne Bryan.
Frequent changes to standard building practices and safety protocols, in addition to an increase in project delays, have led to a high frequency and often large-scale litigation in the construction industry. These litigation cases are often complex and time-consuming, with extensive documentation to navigate and review.
Construction industry litigation is also often complicated by the involvement of multiple parties, including contractors, architects and engineers. For these reasons, cases typically include large amounts of documents, including contracts, change orders and construction drawings. In turn, they are time-consuming and expensive, with significant resources required to manage the documentation and analyse the technical aspects of the case.
The construction industry is also subject to many regulations enforcing specific working conditions and safety precautions. The rapid development of certain industrial technologies makes these requirements easier to enforce and fulfil, but also create new types of data that must be taken into account in the event of a dispute.
Fortunately, just as technology creates new vectors of risk, it can also be applied to dramatically mitigate the challenges involved in legal disputes and play a crucial role in aiding construction litigation cases in becoming more streamlined and efficient, for both legal teams and their expert providers.
The intersection of technology and construction
The General Data Protection Regulation (GDPR) has imposed strict rules on the collection, processing and storage of personal data, including biometric data such as facial recognition and fingerprint recognition data. As a result, the use of these technologies on construction sites may be impacted by GDPR regulations.
Under these regulations, biometric data is classified as a special category of personal data, which means that it is subject to even more stringent requirements for processing and storage than other types of personal data. This includes requirements for obtaining explicit consent from individuals before collecting and using their data, implementing appropriate security measures to protect the data and ensuring that the data is only used for specific and legitimate purposes.
In the context of construction sites, the use of facial recognition or fingerprint recognition technology may be justified if it is necessary for security and safety purposes. For example, the technology may be used to verify the identity of workers and visitors to the site, monitor access to restricted areas and track attendance and working hours.
However, the use of technology must be carefully balanced against the potential risks of data privacy and security. To comply with these regulations, construction companies must implement appropriate technical and organizational measures to ensure the protection of biometric data, such as encryption and access controls. Companies must also ensure that individuals are fully informed about the collection and use of their biometric data, and that they have the right to access and collect it.
Overall, the use of facial recognition or fingerprint recognition technology on construction sites may be impacted by GDPR regulations, but it is still possible to use these technologies if the appropriate measures are taken to uphold compliance with GDPR. Construction companies should carefully evaluate the risks and benefits of using these technologies and implement appropriate measures to protect privacy and security of biometric data. Without such precautions, companies may be subject to regulatory penalty and potential litigation for violation of data protection requirements and/or privacy rights.
Technology in construction disputes
The process of collecting and filtering such large potential data sets has advanced significantly in recent years. With the advent of search-based models of disclosure, parties involved in a dispute may agree — with the court’s direction — on the use of various technological tools. These may include email threading, concept clustering analysis and machine learning in the form of algorithms which assign tags to documents based on a manual-input sample set.
Moreover, the same rapid development that has contributed to the occurrence of construction litigation problems can also play a part in their resolution. For example, modern construction projects are meticulously managed, often down to the smallest details, and when certain software systems are in place, very little will go unlogged or untracked on a site.
Building information modelling (BIM) technology is one of these categories of systems, and allows for real-time review of changes to construction designs and plans. Companies that follow BIM processes will automatically have a record of all design changes made to a project. This includes the use of 2D and 3D design software, which can produce comparisons between versions of projects which specifically highlight areas of change, such as where a door or window has been moved, or where a boundary has been altered.
Particularly with cloud-based BIM, it’s easily possible to see what was changed, when and by whom. As disputes in construction often centre around these types of changes, this feature is of great use when establishing the facts of a case.
In a similar respect, recent developments in blockchain technology may have applications in construction litigation. While there is much to be seen with the future of blockchain technology, there is the potential for the technology to be applied to construction designs and plans, and to assist in related intellectual property disputes. With a permanent, immutable record of original creation and construction plans stored on a blockchain, legal teams facing disputes around design origination and IP could have a reliable source of information to ascertain a work’s original designer and formulation, where such matters come under dispute.
Handling the data problem
The volume of data in construction litigation cases and its complexity can be significant, with numerous documents and different data sets to review and analyse. This can make the litigation process time consuming, and in turn, costly. However, there are several strategies that can be used to help in reducing the volume of data, increase the efficiency and ease the integration of different data sets in construction litigation. These include:
Early case assessment involves a thorough review of the case at the outset to determine the key issues and relevant data sets. This can help to identify and eliminate irrelevant information, reducing the volume of data that needs to be reviewed and ultimately analysed by experts and counsel.
Review technology such as Relativity to aid in the management and review of documents at the core of a dispute can help legal teams, experts and external counsel organise and categorise large volumes of information associated with these types of cases. This can again streamline the process, manage decisions and provide access to the necessary parties, ultimately assisting in reducing the time and resources required to manage the case load.
Advanced technologies also enable legal teams to leverage technology assisted review (TAR) and continuous active learning (CAL) methodologies. These machine learning-based tools prioritise and categorise documents based on their relevance to a case, which helps to quickly identify relevant documents and reduce the volume of data that requires manual review.
Ensure the review technology provider will take a bespoke approach to yield the most benefit from the technology systems that are generating data and could be used as part of the litigation story. It is increasingly important that database-backed systems are integrated with more traditional sources of litigation data such as emails and messaging during the review process to ensure a complete picture can be formed and reviewed as efficiently as possible.
Data analytics are also critical to help identify patterns and trends in large sets of data, further prioritising relevant information and reducing the volume of irrelevant data from the review set.
Overall, reducing the volume of data in construction litigation cases requires a combination of strategies, including early case assessment and using the right technologies and expertise to identify, collect, manage and keep track of data and decisions made by the legal team and supporting experts. These tools also improve accuracy and efficiency of the case, supporting the legal team in reaching resolution faster and more cost effectively than they would with manual, linear processes.
The construction industry is fraught with legal hazards. From structural concerns, to contractual agreements, to human resource management, there are a litany of issues that can arise in the course of a given project. Despite technological advancements, many of these issues will persist, spurring legal disputes in this industry, in areas including data privacy, project planning, design, material management, employment and more. However, there are a variety of tools that can both reduce the chances of the issues occurring in the first place and reduce the costs of solving them when they do happen.
About the author
Gráinne Bryan is a Senior Managing Director within FTI Consulting’s Technology segment and is based in Dublin. She has worked in the legal industry for more than two decades. Throughout her career, Ms. Bryan has consulted with law firms and corporate legal departments enabling them to effectively leverage technology and resources in all areas of legal practice.
David Beck is a Managing Director within FTI Consulting’s Technology segment, based in Dubai. He specializes in supporting clients with forensic technology solutions and has done so across a variety of client challenges including internal and regulatory investigations, international litigations, regulatory and antitrust enquiries, data disposition and incident response.