• October 05, 2019

Clawback Agreements – Friend or Foe?

Discovery, Litigation
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As construction attorneys, we are no strangers to voluminous productions of client documents and communications, both in electronic and hardcopy formats, during discovery. Even with proper safeguards in place during document review, there exists the possibility that some privileged material may accidentally slip over to an opposing party.  Production of such material to a third party, especially an adversary, runs the risk of waiving attorney-client privilege or attorney work product privilege.

Rule 502(b) of the Federal Rules of Evidence creates somewhat of a safety net for inadvertent disclosures, but requires compliance with a number of steps. Fed. R. Evid. 502(b) (“disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B) [concerning inadvertent production of trial preparation materials].”) Note also that

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  • October 03, 2019

Pierce Atwood Attorneys Attending Summit on Diversity and Inclusion in the Construction Industry

Diversity & Inclusion, PA News
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Pierce Atwood Attorneys, Tom Dunn and Katie Kohm, plan to attend a first-ever summit focused on understanding the business implications of inclusion, diversity, and professionalism across the construction industry.  The meeting is a perfect opportunity for in-house counsel, risk managers, compliance managers, diversity officers, and other leaders of companies involved in the construction industry to engage in this important discussion.  The American Bar Association Forum on Construction Law is putting on the meeting in Philadelphia later this month on October 23-25th.  As can be seen in the program brochure, the topics discussed are relevant to legal and business professionals involved in the construction community.  In addition to an assessment of diversity and inclusion, topics include how those issues relate to risk management, pay equity, immigration, DBE programs, negotiations/ADR, leadership, and rules of ethics.  The program will benefit any lawyer advising companies, any labor/employment lawyer, and any in-house counsel for construction, design, insurance.

I

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  • October 01, 2019

A View from the Middle of the Table – A Mediator’s Practical Observations and Recommendations

Mediation
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After more than 300 mediations in the last twenty years, I have found that a successful mediation of a complex matter requires thoughtful preparation and collaboration by counsel, parties and the mediator. In contrast, the hallmarks of a failed mediation often include: an inadequate objective evaluation of one’s own case, a failure to fully support or vet the damages claimed, failure to make a cogent and competent case presentation in the joint session, or a failure to accurately estimate the transaction cost of proceeding to judgment (attorneys’ fees, expert fees, discounted risk of adverse judgment etc.). What follows are some practical observations and suggestions on how to be effective as an advocate in mediation. This is not meant to be exhaustive; it is meant to orient (or re-orient) counsel’s thinking as a mediation approaches.

Choose the Right Mediator

There are many schools of thought on how to pick the right mediator. Some argue that picking a mediator with deep substantive knowledge in the subject

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  • September 25, 2019

Taking an Out of State Deposition in Rhode Island Just Got Easier!

Discovery, Litigation, RI Statute Update
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On July 15, 2019, the Uniform Interstate Depositions and Discovery Act (the “Uniform Act”) was enacted in Rhode Island. R.I. Gen. Laws 9-18.1-1 et seq.  It will simplify the process of taking a deposition in Rhode Island for actions pending outside Rhode Island.  In enacting this legislation, Rhode Island joins 33 other states in adopting the uniform legislation.

Fact Scenario

You have a construction litigation matter pending in Vermont, but the architect of the project is from Rhode Island.  You want to take the architect’s deposition.  How do you go about taking the architect’s deposition?

Process Pursuant to the Previous Statute

The Vermont counsel wishing to take the deposition must provide a commission or some instruction from the Vermont trial court granting permission to take the out of state deposition.  Vermont counsel then had to retain local counsel licensed to practice in Rhode Island to commence a miscellaneous

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  • September 18, 2019

Corporate Deposition — Multiple Witnesses At the Same Time?

30(b)(6) Depositions, Discovery, FRCP Rule Update, Litigation
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A few years ago, I represented a process piping subcontractor in a claim against the general contractor and the owner of a coal fired power plant in Massachusetts.  While the case was unique and interesting in a number of ways, some of which may be the subject of future posts, one aspect that was new for me was taking a Rule 30(b)(6) corporate deposition of two individuals at the same time.

Rule 30(b)(6) depositions are depositions of a corporation or other business entity.  It is the corporation that is testifying.  These depositions can be helpful to obtain testimony of the corporation that will be binding on the corporation at the time of trial.  They also impose an obligation to prepare and educate the individuals who testify on behalf of the corporation — to learn what information the “corporation knows” which is often beyond one person’s personal knowledge.  The corporation designates individuals to testify for the corporation on a list of topics provided by the party noticing

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  • September 11, 2019

An Easy Way to Preserve Your Mechanic’s Lien Rights in Rhode Island

Litigation, RI Mechanic's Lien
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A mechanic’s lien right is a powerful remedy to secure a contractor’s right to payment.  Each jurisdiction’s mechanic’s lien statute is unique and most states strictly interpret/enforce the statutes.  For multi-jurisdictional contractors, a common practice in New England, mechanic’s liens are a double-edged sword because they provide substantial leverage, but they are often costly and cumbersome to perfect.  In the Solid Foundation blog, we will post regularly on issues relating to mechanic’s liens statutes throughout New England.  As a start, we have put together this post that zeroes in on one fundamental requirement to preserve a general contractor’s mechanic’s lien in Rhode Island – the Notice of Possible Mechanic’s Lien pursuant to R.I. Gen. Laws § 34-28-4.1.

WHO SHOULD READ THIS POST?

  • Contractors who perform work in Rhode Island for Owners.
  • Owners

WHAT A CONTRACTOR NEEDS TO DO TO PRESERVE ITS MECHANIC’S LIEN?

If

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  • September 04, 2019

Practical Tips on Working with Former Employees Who Are Key Witnesses

Discovery, Former Employees, Litigation
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Suppose you are in-house counsel for a construction company.  Your Guaranteed Maximum Price (“GMP”) is blown and the Owner has refused to execute any change orders during the Project. You know you are heading towards a claim.  Within one week of substantial completion being achieved, the project manager that has managed the entire job gives his notice explaining he is leaving to work for a competitor.  What do you do next?  What could you have done to plan for this?  In this post, I outline practical measures you can take when faced with this challenging, complex, and yet very common scenario.

Planning Measures

The best time to deal with the issue of former employees is before the employee is hired.  Important provisions to be considered in employment policies and agreements include:

  • Confidentiality and Protection of Company Trade Secrets. An employer, particularly in the competitive market of the construction industry, has a strong and
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  • August 28, 2019

Additional Insurance Coverage: Fundamentals and Misconceptions

AI Coverage, Construction Insurance, Contract Documents, ISO Forms, RI Case Law Update, Risk Management
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Additional insured (“AI”) requirements for commercial general liability (CGL) policies are very common in construction contracts.  An Owner routinely requires its general contractor (“GC”) to provide AI coverage for itself, its affiliates, and sometimes a handful of other entities (lender, architect, etc.).  In turn, the GC mandates its subcontractors to provide AI coverage for the GC, the Owner, and a cast of other characters.  While frequently used, for good reason, this risk transfer tool is often misunderstood.  In this post, I will explain the purpose of AI coverage, identify what it does and does not cover, and provide answers to a few misconceptions about additional insured coverage.

The Purpose of Additional Insured Coverage

The design of AI coverage is to trigger the insurance procured by lower-tier contractors.  The Owner, GC, and subcontractors all have CGL insurance, but the goal of additional insured coverage is to make sure that someone else’s insurer will be on the hook to provide defense and indemnity should

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  • August 21, 2019

Should You Use Integrated Project Delivery on Your Next Construction Project?

Contract Documents, IPD, Project Delivery Methods
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Complex construction projects have many moving parts and numerous stakeholders.  Each project often contains its own unique challenges and obstacles.  Finding the right solution does not often come by trying to utilize a one-size-fits-all approach.  Indeed, complex issues call at times for customized responses.

Discerning the appropriate solution for particular problems involves a variety of decisions.  Chief among many concerns is determining what the priorities are on a given project, and figuring out the best way to achieve those aims for all involved.

A contract solution that seeks to harness the potential of collaboration, and alignment of the priorities of all those involved in complex construction projects, is Integrated Project Delivery (“IPD”).  IPD is a project delivery system that utilizes a team-based approach to construction projects where the risks and rewards of a project are shared by all of the stakeholders and, when done right, maximizes efficiency so projects are completed on time and on budget.

Like other tools, IPD is not

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  • August 14, 2019

Introducing Pierce Atwood’s Solid Foundation Construction Law Blog

PA News
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Welcome to the Solid Foundation Construction Law Blog!   I serve as the team leader of Pierce Atwood’s construction law team and will work with my colleagues to deliver interesting content to you.

With this blog, we want to share our experience, suggestions, and reliable construction industry and construction dispute resolution resources with you.   Our blog contributors are members of Pierce Atwood’s Construction Group and related practices including as environmental, real estate, energy, compliance & governmental regulations, and labor/employment law. Construction is a diverse industry and we want to share tips and trends we observe as the industry evolves.

We plan to approach our posts with a more informal approach and tone.  As editor of this blog, I am going to encourage my colleagues to write posts on a wide range of topics – even if it is a paragraph or two.  I see us covering the following subjects:

  • Getting Contractors Paid.
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