Sep 28, 2017

Natural disasters are taking over news headlines and hitting Americans and others hard. Hurricanes Irma, Harvey, and now Maria; droughts; forest fires; melting glaciers; and even debilitating blizzards have been causing severe physical damage, distress, and dire circumstances. The aftermath of these natural disasters is still being understood and evaluated.  The losses that these natural disasters wrought will be grieved for some time to come.  Now, the recovery must begin.

In the Wake of a Disaster, Data is Key to Resolving a Building Dispute

After disaster hits, and rebuilding begins – construction and repair may commence as well. It has been reported that the amount of destruction that hit Texas after Hurricane Harvey has led to a shortage of skilled construction workers in the area. While there are continuous advisements to hurricane victims to research whether the labor being hired is certified and licensed, problems still spring up regarding faulty construction and repair.

When construction – especially reparative construction – is on the table, the parties involved must diligently monitor the process from start to finish. While the specific task timeline is different for every type of construction repair, the steps could include (but are certainly not limited to):

  • Identifying the problem(s) by working with an independent adjuster;
  • Filing a claim with FEMA;
  • Determining whether insurance will cover the incident or if the expense must be borne by the building-owner;
  • Evaluating and selecting a construction company through a diligent review process;
  • Depending on the size of the project, hiring an independent project manager;
  • Ensuring the work to be provided is documented in writing, and the contract includes all necessary elements as guided by legal counsel;
  • Maintaining involvement with the project, which will likely include status meetings and status updates via e-mail regarding progress, delays, problems, change requests, etc. – in a regular fashion; and
  • Being prepared to submit the final payment if and when the work is completed to your satisfaction, or to halt payment if a dispute arises or if the contractor walks off the job.

A well-documented project based upon a clear agreement will streamline the resolution of disputes.  All of these steps could easily involve a digital data trail. Dispute resolution including litigation (and pre-litigation) is multifaceted, and requires industry-based as well as technically-based expertise in the fact-finding and evidence gathering stages.

During a repair or construction project, it is imperative to monitor timelines and deliverables, and track all forms, contracts, and communications. Electronic forms project management documents (American Institute of Architects, or AIA, forms) may be shuffled between many members of a construction team and the client. Accounting files, engineering drawings (CAD), blueprints, change orders, text message and e-mail correspondence, and other complex file types can easily become multiple voluminous and difficult to review and analyze.

Preservation is key, and if litigation becomes a possibility, digital forensics experts can harvest, analyze, and investigate the pieces of digital data that could be the smoking gun. Construction litigation is complex terrain, typically because there can be multiple edges to a legal issue – contractual, financial, zoning, environmental, personal injury, insurance, employment…the list goes on.

How Can You Protect Your Data?

Unfortunately, another part of the aftermath of natural disasters includes potentially massive data loss and major business interruption. While every company must prepare proactively for system failures and database damage, computer systems based in areas of the country that experience natural disasters are a key target. One piece of this puzzle is to have a data backup and disaster recovery procedure that is structured and followed by all employees and vendors.

Data is a company’s most valuable asset, and it must be protected as such – recognizing its value to the business and for any potential future litigation issues. A data backup plan creates a methodology for providing access to a data set – potentially (and most beneficially) both via the cloud and via hard disk. Backing up data is one of the most significant ways to ensure access in the face of accidents, malware, hardware failures, and – of course – natural disasters. One area that is often overlooked but is extremely important is regular testing of backups and restoration procedures.  The last thing you would want to discover after a natural disaster is that your backup solutions were faulty or unreliable.  Depending on your core industry, the components of your backup plan may vary but some basics that should be covered are: the timing of backups; what industry standards apply to the saving and destroying of data your company houses; and who will be responsible for checking backups, and on what schedule.

Additionally, all data backup procedures must be secure. If data is being backed up to a cloud-based platform (in addition to a hard copy, stored somewhere offsite), that storage provider must be audited and monitored. As an important aside, only authorized employees should be given access to retrieve the data, and patterns of access should be monitored to detect any important irregularities. Natural disasters may be gateways for nasty online opportunists, trying to cash in on valuable files or confidential information when a company is at its most vulnerable. Ensuring that that the principle of least privilege is followed – meaning, the least amount of employees have the least amount of access for the least amount of time – assists in securing data.

When the Storm Dies Down

The digital issues surrounding natural disaster preparation and recovery continue to increase in complexity. After the major hurricanes that hit the United States over the past month, the necessity of having the right expert team established to handle digital forensics, data backup and restoration, and cybersecurity related to construction litigation has only become more significant. Struggling in the eye of the storm to find the right teammates is not a solution – only preparation is. Capsicum’s own Fort Lauderdale, Florida office was right in the belly of the beast with Hurricane Irma, and we send our greatest sympathies to everyone effected.  Capsicum continues to assist companies throughout the country with data security and business continuity planning, in addition to any litigation needs related to construction dilemmas, as we have for the past seventeen years.