Managing Document Discovery in Construction Disputes

Originally published to the Oregon Daily Journal of Commerce on April 16, 2026

Construction projects by their nature tend to be document intensive. This is a function of how the industry delivers projects: An owner traditionally hires an architect or engineer to design a project, who in turn hires subconsultants. The same happens on the construction side: An owner hires a general contractor, who hires subcontractors and purchases materials from suppliers, all of whom may further contract downstream for various services, labor, materials, and equipment.  Each party maintains its own project files and communicates upstream, downstream, and across stream via email, text, communication apps, and various project management systems. Though other project delivery methods may change the contracting scheme, this in most cases will not materially impact the volume of communication and documentation generated during design and construction of a project.

Thus, it should be no surprise that construction disputes are similarly document intensive, particularly in the age of electronically stored information — or “ESI.” Depending on the amount at issue, nature of the dispute, size of the project, and number of parties involved, the number of documents collected, searched, reviewed, culled, and produced can be in the millions.

To address these challenges — and to provide transparency and assurance that the parties are taking the same measures to collect, search, and produce responsive data — parties and their counsel will often enter into ESI protocol agreements that spell out requirements for cooperation and transparency, as well as the processes the parties will take to meet their document discovery obligations.

Most ESI protocol agreements address six principal issues: 1, the obligation to preserve documents; 2, the obligation to collect documents; 3, the means and methods the parties will use to search collected documents for potentially responsive material; 4, the procedures for addressing privileged material; 5, the format in which non-privileged, responsive material will be produced; and 6, the process for resolving disputes.

1. Preservation

The law typically imposes an obligation on parties to preserve evidence once they reasonably anticipate arbitration or litigation. However, the parties may want to modify or make more specific that general requirement by, for example, agreeing on specific custodians whose ESI will be preserved.

2. Collection

Typically, an ESI protocol will address custodial data sources — i.e., data sources connected to specific individuals, such as email files — and non-custodial data sources — i.e., data sources not connected to specific individuals, such as share files and project files. The parties’ agreement will typically address custodial collections’ date ranges, which may initially be shorter than the period for which custodial data will be preserved.

3. Search processes

Next, an ESI protocol will often address the methodology the parties will use to search for potentially responsive material. This can include an iterative process for proposing and revising party specific search term lists that the parties will use to search custodial data. Agreement on search terms often involves multiple rounds of search term reports that show the total documents searched and the total hits, as well as term-by-term data such as the number of parent item hits for each term (i.e., emails), the number of hits with family (i.e., emails plus their attachments), and the number of unique hits (i.e., documents that do not contain any of the other search terms).  But just because a search term results in a “hit” does not mean it is responsive or will be produced. That determination will be made after the hits are reviewed for privilege and responsiveness.

In many cases, non-custodial data sources — like project files — will not be subject to the search term process because they are organized in such a way that lends to identifying responsive documents without the use of search terms.

4. Privilege

Often the parties will address in their ESI protocol the extent to which privileged documents will be logged. Because attorneys are often involved in construction disputes before the project is even completed, the volume of privileged material can be significant — and creation of a detailed log may be time-consuming. To address that concern, the parties may agree that communications with trial or arbitration counsel do not need to be logged. The parties may also agree to a phased logging requirement in which an initial privilege log may include only the details that can be readily exported into an Excel spreadsheet from a document’s metadata, such as to/from/cc, date and time sent, subject line, and whether there are any attachments. The other parties would then have the opportunity to request additional information on a document-by-document basis.

5. Format of production

An ESI protocol will almost certainly include requirements for the format in which ESI will be produced. Most commonly, the parties will agree to produce “load files” that when uploaded into an e-discovery platform like Relativity work together to allow efficient viewing, searching, and filtering. The load files may include a native file, an image file (with a Bates stamp inserted in the lower right corner of the imaged document), a metadata file, and an extracted text file. The formatting section will also address whether and how ESI will be deduplicated and how parent-child relationships (i.e., emails with their attachments) will be preserved. Many law firms employ paralegals specially trained to analyze and advise on these highly technical matters.

6. Process for resolving disputes

An ESI protocol may typically include a process for resolving disputes that almost certainly will require conferral before any dispute may be raised with the court or arbitrators. In some cases, the parties may also agree that matters related to e-discovery will be resolved in the initial instance by a discovery master who is experienced with adjudicating disputes related to e-discovery processes.

Lastly, the role of AI in the aforementioned processes — and e-discovery in general — is rapidly evolving. Many law firms are offering clients the option to use AI tools in aid of functions historically performed by lawyers and paralegals. Early results with some of these tools are promising but still require critical review by the legal team.

Fulsome document discovery is a critical part of reaching the merits of a dispute — particularly in document-intensive construction cases.