“The weakest ink is stronger than the strongest memory.”
The above quote from an Unknown Author summarises succinctly the emphasis on note taking and record keeping in a professional role.
This article will explain the importance of good record keeping with emphasis on the Court’s interpretation of a document for litigation purposes and also delves into the intricacies of effective record management.
Let’s take a hypothetical, an engineer and a builder have an onsite discussion regarding a design for a residential tower. There was no written contract between the builder and the engineer as they had previously worked together on friendly terms. The design and build proceeded and during the excavation process the adjoining properties became damaged due to vibration. The adjoining property owners sued the builder. The builder subsequently alleged that the engineer provided onsite advice that vibration monitoring during demolition was not required. There were no file notes of the conversations that occurred onsite.
In this situation, when the matter goes to litigation, the Courts would merely have to rely on the memory of the party in question. Courts and tribunals are generally sceptical about the accuracy of human memory. During cross-examination, multiple factors may influence each person’s ability to recall the series of events that occurred. In the event of an investigation for an insurance claim the documentary evidence of each party becomes crucial.
What to record and why keep good records?
As a consultant you would need to record everything from file notes of conversations to general correspondence (email, faxes, letters). You must do your best to document discussions at site meetings, contractual negotiations, details of site inspections and telephone calls with builders or clients. Some notetaking may seem minor at that time, however, be aware that claims do not arise within months after the project completion date, they tend to occur many years later, when cracks appear in the build or corrosion of materials becomes visible. Due to the passage of time, neither party may recall the details of telephone conversations or onsite discussions regarding the choice of material, for example, so the reliance on records taken at the time of event become crucial.
Good record keeping demonstrates that you have made informed decisions and therefore allows you to take appropriate actions. By keeping good records, you are lowering your risk of exposure when you are questioned or challenged about the decisions you have made.
Record Management
Consider developing a company policy for document management and record keeping ensuring it covers both electronic and hard copy documents. This policy should be thorough and cover the creation, storage, archiving and destruction method for every document that is being recorded.
Document destruction is as important as creation. This is because you may be in contempt of court if you destroy documents that may form evidence in a legal proceeding that is underway. It is good to clarify any destruction of documents by a senior staff member and get their authorisation prior to deleting or destroying documents. They should be able to ascertain whether any disputes exist on a project or are anticipated. If either of these are likely, the file should be returned to archives with a new expiry date, upon which its destruction will be reconsidered.
A key element of record management is handling sensitive information appropriately. Records can contain personal and confidential information which must not be disclosed to unauthorised persons. Your record management policy should stipulate secure storage areas, protect passwords and prohibit sensitive records being easily accessible.
The concept of document management and record keeping has changed over time with the advancement of technology. Flexible working arrangements from various locations such as client offices, building sites, working off your mobile phone or tablet and working from home also means that in the event of a court proceeding, content in workplace chats, photographs on your phone, drone footage, text messages, WhatsApp conversations, LinkedIn posts and comments could all form part of evidence against you. Be aware of all forms of communication as they could be discoverable in litigation.
Discovery and Discoverable documents
Discovery refers to a process in a court proceeding where both parties provide information and evidence relevant to the case. The discovery process allows both parties to prepare and produce their evidence for trial to avoid any surprises at trial.
If you find yourself in a situation where you do hold documents that contain information that might be damaging to you, then the discovery process will force you to disclose those documents to the other parties in the litigation, who might then use this evidence against you. So, while it is important to keep written records, you also have to be careful not to write down things you might come to regret.
The emphasis on keeping good records will benefit your practice not only in times of litigation but also as a courtesy to your colleagues and more importantly to your clients.
Keep an eye out for our first webinar for 2021 on Record Keeping where our Risk Managers will discuss document management strategies and the importance of maintaining good records. This webinar is designed to increase your awareness about record keeping and improve your understanding about documentary evidence during litigation or when a claim is made. With the rise in flexible working arrangements, now, more than ever, document management, paper trails and overall efficient record-keeping is essential and imperative to all professional roles.
Don’t miss out! Book here for our Webinar on Record Keeping
Discount codes for Planned Cover clients have already been circulated via our mailing list – please contact us at info@informedprofessionals.com.au if you have not received it.
Cordilia Thomas
Risk Manager