The Nextpoint construction litigation checklist delivers a comprehensive workflow for navigating construction matters, from early data challenges to trial presentation strategies that distill complex information. Download the full checklist here.

[EDRM Editor’s Note: EDRM is grateful to our Trusted Partner Nextpoint for permission to publish. The opinions and positions are those of the author.]

The value of a construction litigation strategy

Construction disputes are among the most data-intensive cases in litigation. With the average North American construction dispute now costing $42.8 million, the attorneys who manage their data effectively from day one are the ones who win.

Unlike traditional litigation, construction cases mean juggling CAD files, BIM models, thousands of site photos, project management databases, accounting systems, and proprietary scheduling software — all at once, across dozens of parties. A clear, strategic approach to ediscovery is essential.

Because construction litigation is so data-heavy, it’s easy to think of it as primarily a technical exercise. But there’s a great deal of legal strategy involved at every stage. The attorneys who win construction disputes are the ones who think about data strategically from the very beginning.

Here are key guidelines you should adhere to, from early case assessment to trial presentation:

Get ahead of the data early

Early case assessment (ECA) has evolved beyond sorting through boxes of documents. The key is asking the right questions from day one so you can form tactical plans for collection, filtering, and review before costs spiral. Take advantage of the Meet and Confer to learn more about opposing counsel’s data and establish ESI protocols informed by the ECA process.

Custodian and data source interviews

• Conduct initial client witness interviews with specific questions about document locations.
• Identify what project management software was used (e.g., Buildertrend, Primavera).
• Determine which accounting systems tracked project costs.
• Find out who had mobile devices on site and what was captured.
• Interview IT professionals and administrators familiar with the client’s information systems — even if they have no factual knowledge of the dispute.

Meet and Confer

• Request disclosure of opposing party’s software platforms (e.g., Office 365, G Suite) during initial Meet and Confer.
• Ask opposing counsel to identify their accounting and project management systems upfront.
• Gather information about opposing counsel’s data sources to inform your collection strategy.

Questions to ask

• How many parties are involved?
• Who are your key custodians and where are they located?
• Do any identified custodians have direct IT resources available?
• What are each custodian’s key data sources? (e.g., email, phone, tablet, company server, project management software, accounting system)

Develop a comprehensive ESI protocol

The key to managing construction’s data complexity is developing a comprehensive ESI protocol before discovery begins — and negotiating it with opposing counsel early to avoid expensive battles later.

What your ESI protocol should address

• Data sources and collection methods for each
• Metadata requirements
• Review parameters
• Privilege handling procedures
• Secure delivery methods for production

Questions to ask

• What deadlines have been agreed upon?
• Have any preservation steps been taken?
• How accessible is each identified key source? (e.g., password protection, remote access)
• Which collection method is preferred/necessary for each source? (e.g., Self v. External v. Remote)
• Are there any parameters to be applied at the time of collection? (e.g., date range)

Build the right document review process

Document review in construction cases involves more than finding relevant documents; it’s about understanding complex technical relationships while protecting privilege across multiple parties with competing interests.

Team and technology setup

• Assign a lead attorney who understands both the construction matter and your review platform.
• Bring in subject matter experts who can distinguish routine project communications from evidence of actual problems.
• Set up reviewer assignments so team members only see their designated review sets.
• Configure an analytics dashboard to track review progress and key metrics.

Coding strategy

• Establish standard responsiveness and privilege categories.
• Create construction-specific subcategories for delays, defects, costs, and schedule issues.
• Use bulk coding features to tag email families and threads efficiently.
• Build custom review workflows that align with your case strategy.

Privilege review

• Flag attorney-client communications.
• Identify insurance counsel discussions.
• Mark expert consultant materials and settlement negotiations.
• Capture internal strategy discussions about technical issues.
• Organize privilege fields prominently in your coding panel to reduce the risk of inadvertent disclosure.

Production planning

• Account for large and specialized file formats — CAD files, video evidence, proprietary software outputs.
• Build time for format conversion and high-volume redaction workflows.
• Run quality control testing before final production.
• Confirm all metadata requirements from your ESI protocol are addressed.

Present your technical story persuasively

After months or years of discovery and case development, it’s time to present a compelling story. In construction litigation, that story often involves technical concepts that most judges and juries haven’t encountered. The challenge is making the complex understandable without losing the nuance that supports your case.

Pre-trial preparation

• Visit the courtroom in advance to assess power, screens, and audio capabilities.
• Confirm you have primary and backup presentation devices.
• Establish a clear document reference system for fast exhibit retrieval.
• Conduct a full technical rehearsal to surface any missing evidence or equipment issues.
• Prepare for the possibility that you may need to share equipment with opposing counsel.

Working with a trial technician (Hotseater)

• Engage a trial technician experienced with both courtroom dynamics and technical construction evidence.
• Brief your hotseater on case-specific data types — BIM models, scheduling software, GPS photo metadata.
• Establish clear communication protocols between counsel and the hotseater during trial.

Presentation strategy

• Build presentations in flexible modules that can adapt if cross-examination takes an unexpected turn.
• Lead with education before advocacy — explain construction relationships and technical processes before presenting evidence.
• Use demonstratives that provide visual context for complex construction processes, such as:
  • Visual timelines of construction delays
  • Animated reconstructions for structural failures or sequencing disputes
  • 3D models of the relevant structure
  • Annotated site diagrams with accompanying photos
• Maintain access to native software for moments when you need to demonstrate how a project schedule or BIM model actually worked.
• Prepare backup static versions of dynamic content to avoid being caught off guard.

Click here to download the full construction litigation checklist.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.