Construction companies need to mitigate growing risks of disclosure of electronic communications

The risks around candid electronic communications being made public have been realised in the most public and dramatic of ways in the last couple of years, from the “Wagatha Christie” trial and TV documentary this autumn, through the Depp v Herd cases and the most senior politicians’ messages in the ongoing Covid-19 inquiry being in the media.

It has become increasingly important for businesses in the construction industry to consider the risks of disclosure of electronic communications in formal dispute resolution - and how to manage those risks, as vast numbers of electronic records are being created every day through a growing number of channels like email, WhatsApp, text (SMS), Yammer, Facebook Messenger, and Teams. Despite only taking seconds to create and send a message online, most of these communications will survive forever, somewhere. The increasing use of collaboration and messaging platforms, particularly during and following the pandemic, has exacerbated this. 

The starting point for businesses to take note of is that all electronic communications will be disclosable in future litigation, unless privileged or irrelevant. 

“Privilege” will typically apply only to legal advice, documents prepared for the dominant purpose of litigation, and genuine “without prejudice” attempts to resolve a dispute.  It is unlikely that any of the exceptions will apply to – for example – a project-level WhatsApp group capturing ‘chat’ among the contract administrator, contractor and supply chain. Those messages are captured forever in a way that is not always considered by their authors. 

As the recent high-profile cases have shown, risks of disclosure are magnified by the tendency for individuals to be far more unguarded when sending communications on instant messaging platforms than they would in traditional correspondence or even emails. This is a particular risk where users feel confident that their messages will not be disclosed because of the way the platforms operate. For example, Microsoft Teams messages delete every 30 days and WhatsApp messages are “encrypted” to protect them from being hacked. However, companies must be aware that, if needed, forensic experts will often be able to dig up these documents for years to come if a disclosure order is made.

How to manage the risks of disclosure

Whilst the growing scale of electronic communication is likely to cause businesses concern, these risks can be mitigated by encouraging employees to follow some key golden rules:

• Keep it professional, and think before creating anything in writing. Ask the question: how would I feel if this were read out in court, word-for-word and perhaps out of context?
• Never try to deliberately delete electronic communications (or shred hard-copy documents) in order to avoid disclosure. They can nearly always be retrieved. Ensure that the business has a “back-up” mechanism to prevent employees permanently deleting data.

• Use appropriate headers. While simply labelling a document “confidential” or “privileged” will not necessarily mean that it is privileged and therefore not disclosable, such labels signal that it might have that status – so that it can be quickly located and analysed for its substance.

• Keep legal and commercial advice separate, where possible.

• Keep abreast of changes such as the functionality to edit WhatsApp messages and implications arising from the increased use of AI.