Given the increase of today’s mobile technologies available on the construction site … from smart phones, to iPads and tablets, to electronic drawings and specifications … there are going to be new disputes involving those technologies.


In particular, I think we are going to find an increase in disputes when it comes to the use of emails as a means of communication among project members.  First, email communications tend to be sent "off the cuff" without creating a draft of the communication that can be reviewed by team members.  In addition, you may not have the accurate contract provisions in front of you when you are sending an email from the project site, so your communication may not include the appropriate contract references that you need to support your position or claim.  Finally, email communications simply tend to be more informal and can lead to "miscommunications" among the project team members.

Notwithstanding these potential problems, people continue to use email without having a full understanding of the risks involved.  For example, did you know that your email communications can be used to establish an enforceable contract, change order, or settlement?  In Tennessee, there is the Uniform Electronic Transactions Act (UETA) that applies to electronic records and electronic signatures relating to a transaction. The statute expressly states that:

  1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
  2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
  3. If a law requires a record to be in writing, an electronic record satisfies the law.
  4. If a law requires a signature, an electronic signature satisfies the law.

The UETA was recently relied upon by an appellate court in Tennessee, Waddle v. Elrod, where the parties had reached a settlement agreement through the email communications of the attorneys. Although one party later attempted to renege on the settlement agreement, the court found that the emails by counsel constituted a valid contract.

Question: Do you have a computer use policy for your project managers? Are you training your construction teams on the use of emails?

Image: Sean MacEntee