The Risk of Spoliating Electronic Schedules

Schedules are an important part of proving or refuting delay and other impact claims because they provide a detailed medium for comparing and measuring time and intent. The use of a detailed method to present a time claim is important to establish the claimant's entitlement to both the delay and other additional costs related to the delay. In this Analysis, Michael Callahan and Jason Romero discuss the spoliation of evidence, construction scheduling, and avoiding the spoliation of construction schedules. They write:

SCHEDULING SPECIFICATIONS

     Scheduling specifications will vary from project to project. Some specifications require a great amount of detail and obligations. The specifications can define duration units, resource and cost load requirements, review periods for submittals, sequencing logic and organizational sorting methods, milestone activities, update and narrative requirements, and any other relevant scheduling coordination requirements. The schedule specifications may even define the detail and special schedules necessary to support a time extension request. Careful attention must be paid to drafting these provisions rather than copying and pasting from previously used specifications.

     Scheduling specifications may also require use of particular scheduling software. Agreeing on specific software will reduce the risk of discovering multiple schedules from different software providers. Reconciling the different software models makes it difficult to draw accurate comparisons if the contractor submits a baseline schedule made in one software and schedule updates made in another. Specifications that are too burdensome or too vague will make measuring time extensions or claims for delay more difficult. In Morganti National, Inc. v. United States, Morganti was required to prepare a schedule and submit monthly updates using the critical path method. The contract specifications prohibited Morganti from adding time to the contract schedule until the time was approved by the Federal Bureau of Prisons (FBOP) via a bilateral modification agreement. As a result, Morganti was required to schedule and track 7,000 activities. Neither Morganti nor the FBOP were able to compute possible delays because the schedule had become so hopelessly confused. The specification requiring a bilateral modification to add time, combined with the outrageous number of activities to be tracked, rendered the schedule useless as a tool to measure time. If Morganti had disregarded the bilateral modification specification and wrote over the baseline schedule or altered updated schedules to conform to all the change orders, the FBOP might have motioned for spoliation sanctions. Any changes Morganti made to the schedules not in accordance with the specifications could have been viewed as the deletion of relevant, discoverable electronic evidence and subjected Morganti to spoliation sanctions.

     Another case, Turner Construction Co. v. General Services Administration demonstrates the dangers that claimants must confront if schedule copies are not properly maintained. Although the holding does not distinguish between paper and electronic copies, the message is clear: if a delay claimant does not maintain copies of all its schedules, its claims for delay may be denied.

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