Sometimes, claimants or their counsels cast a wide net at the beginning of a dispute, sending demand letters and/or filing litigation against every party involved with a project, including the engineers and other design professionals.
In these instances, it is common for the claimants to discontinue communication with some of the parties less likely to be culpable or even to voluntarily dismiss these parties without prejudice–allowing for re-filing of the same claim in the future. In these instances, engineers often breathe a sigh of relief and put the matter out of their minds. However, these claims occasionally do resurface, and they often catch engineers unprepared.
If an engineer has received a demand letter or is named in a claim, they should make sure to preserve all the documentation relative to the project at issue. Thinking the matter is resolved due to discontinued communication or dismissal without prejudice will not be an adequate excuse, nor will it overcome claims of negligent, intentional, or reckless withholding of evidence called spoliation. Moreover, the engineer will not have the necessary documentation to support their side of the story at trial if they fail to preserve all documentation.
Further, an engineer should still be cautious of inquiries about the project targeted by the claim. Often, the other parties still entangled in the dispute will approach the engineer under the guise of requesting the engineer’s aid in their defense or in the prosecution of their claim. However, these parties usually will not hesitate to use anything the engineer does or says against them to bring them back into the dispute. If an engineer receives communications regarding a project that is the subject of an ongoing dispute or a previous dispute, they should report it to their insurance carrier and consult with counsel before responding. Such consultation can be the difference between remaining a witness or becoming a target in the dispute.
It is important for engineers to remember that when claims are voluntarily dropped, they can often be revived. Thus, engineers should remain vigilant in their document preservation and guarded with their communications, even after it appears they are no longer being pursued.