WHERE IS THAT DOCUMENT THAT WILL SAVE THE COMPANY?
By Laurence P. Lubka
Lubka & White LLP
Typically, when your company has a contract dispute, your attorney or consultant will want to see “all of the documents”. Sometimes there is a key document that will turn the tide in your favor. The question these days is where are your documents and are you even entitled to see your documents. This article regards the challenge of making sure that the one critical document that you need to save your company is not beyond your reach.
Imagine you have a dispute which proves the other company directed you to perform the work that they say was never directed and, regarding which they now claim you are not entitled to compensation. That can be worth millions of dollars. You know there is that one text authorizing you to proceed. Where is it? Is it only on the phone of your former employee who has moved to parts unknown?
Technology changes faster and faster. Young people are adopting technologies and means of communication that older people don’t even know exist. Data has moved from your computer, to your laptop, to your server and now to the cloud. Portable devices have gone from the desk top, to the laptop, to the tablet and now to your watch. RFID chips track where you are and augmented reality can show you more information regarding the things you see (imagine going to a museum and your glasses are scrolling all available information regarding the painting, even while you are looking at the painting).
When there is a dispute regarding a key contract issue, the person who can best document the facts related to the dispute often prevails. It is at such times that you realize how difficult it can be to corral the information. So here is a list of some of the types of challenges you face collecting information and some suggestions regarding how to deal with those challenges.
- The communication used software for which there is no backup, such as Facetime or Skype.
- The information is on a flash drive that can no longer be found.
- The information is on the employee’s laptop, but both the employee and the laptop are long gone.
- Your client used her or his own phone to text the information.
- The data used a program that is no longer available and no one can open the data files (without the need to purchase an expensive new license).
- The photos are on a camera that does not use a removable storage chip.
- You agreed in the contract that you don’t own the plans and specifications and the owner does not now want to share them the plans and specifications with you.
- The information is on a floppy disk and you can’t find a floppy disk drive.
- Your employees used their personal email account or text messages for much of their work.
So, what can you do to make sure you have the documents you need?
- Confirm in your contract that you have continuing access to all contract documents (including plans and specifications), particularly for those projects where you agree to return the drawings to the Owner at the end of the project. It can be cheaper and faster to use contract rights in preference to a subpoena.
- Have a company document retention policy that states what data is saved and how long it is saved.
- Implement a company policy that emphasizes that all documents be saved to the company server on a regular basis (at work or in the cloud). You might consider setting up a project email address to which all email is copied, wherever it is originated and no matter who was or was not copied. Even if your employee uses their own email, you will always have a copy as a required “cc” or “bcc”.
- Generally, employees send texts from their personal phone. One person at the company should be designated as person copied on every text. It would be no shock if many employees don’t follow such a procedure. You would then arrange to download the text data on a regular basis. It may be easier to simply ban use of texts, no matter how popular they are.
- Have someone at the company check to make sure that all tablets and laptops are backed up to the company server from time to time. As noted below, the requirement to allow such a back-up should be in the employee handbook.
- If your employee uses texts for work purposes, they should make their phone available on a regular basis for copying and recovery of text messages (yes deleted texts can be retrieved from the phone). Typically, phone companies store text messages for only a brief time, before they are deleted.
- The employee handbook should reflect the company’s employee document policies. It should be impressed upon employees and noted in the handbook that all work-related emails, texts, photos, videos and other data belong to the company, not the person with the phone. The policy should also state that if personal equipment is used for project communications, the company has the right to retrieve the communications, including the right to ask the email provider for emails and the phone provider for texts. The handbook should also prohibit work communications with applications for which there is no back-up (e.g. Facetime). Further, to the extent that personal equipment is used for communication, the employee should notify the company before disposing of her or his phone or laptop.
- Do not use flash drives or portable hard drives except as back-up or to transport copies of information.
- Do not delete old programs for at least ten years. If you use hardware to save information, keep the hardware in a closet for ten years. You may have a floppy disk, but I dare you to find the equipment to read the floppy disk. Even better, download the data in a format that an always be used (such as comma separated fields).
- When an employee quits or is terminated, return of equipment and back-up of data before they leave is critical.
- Back up data, back up data, back up data.
Remember the text discussed in the second paragraph. Now you know that the employee copied the company on the text and you know where it is saved. You win.