How Illinois Construction Companies Can Preserve Electronic Evidence Before a Construction Dispute Escalates

In Shimanovsky v. General Motors Corp., the Illinois Supreme Court held that a potential litigant must take reasonable measures to preserve relevant and material evidence. Your highly rated Illinois construction lawyer should therefore identify the triggering dispute, the people who control relevant information, and the systems that must be preserved before routine practices destroy evidence.

Preserve Electronic Evidence Through a Formal Litigation Hold

A written litigation hold should be issued when facts show a substantial likelihood of litigation. Common construction triggers include a notice of default, termination threat, rejected change order, delay claim, defect demand, mechanics lien notice, demand letter, or preservation request.

The hold should identify the project, disputed issues, relevant period, categories of evidence, and custodians. That may include the project executive, project manager, superintendent, estimator, scheduler, accounting personnel, procurement staff, and IT staff. The company should require acknowledgment of the hold and update it when new custodians, claims, or data sources are identified.

Preserve Electronic Evidence Through Suspension of Automatic Deletion

A litigation hold does not protect evidence if automated systems continue deleting it. Email-retention rules, mobile-device wiping, surveillance overwriting, cloud-storage limits, backup recycling, and project-platform expiration should be suspended for relevant information.

The suspension should be targeted. Illinois Supreme Court Rule 201 addresses electronically stored information and proportional discovery, so preservation should focus on data connected to the dispute rather than freezing the company’s entire information system.

Counsel should document when deletion was suspended, which systems were affected, which custodians were covered, and who implemented the change.

Preserve Electronic Evidence Through Native File Collection

Native files should be preserved when converting them to PDFs, screenshots, or paper would remove useful information.

A Primavera P6 or Microsoft Project file may contain calendars, activity relationships, constraints, logic ties, and actual dates absent from a printed schedule. Excel files may contain formulas, comments, or hidden cells. Native emails may preserve attachments and transmission data. BIM, Revit, and CAD files may contain revision information relevant to design responsibility or scope.

Illinois Supreme Court Rule 214 addresses production of electronically stored information. Preserving the original file format helps maintain metadata, functionality, and revision history that may later establish authenticity, timing, causation, or damages.

Preserve Electronic Evidence Through Mobile Device Collection

Construction decisions often occur through text messages and mobile applications rather than formal correspondence. A superintendent may authorize extra work by text, send photographs of site conditions, document restricted access, report defective work, or communicate a sequencing problem from the field.

Relevant business communications should be collected before a phone is replaced, reset, reassigned, or disconnected from an employee’s account. Business-related information on personal devices may also require preservation.

Employees should not simply forward messages they believe are important. Selective forwarding can omit surrounding communications, attachments, timestamps, photographs, and information necessary to establish context.

Preserve Electronic Evidence Through Project Platform and Revision History Exports

Project platforms should be preserved before access expires or historical data changes. Relevant exports may include RFIs, submittals, daily reports, transmittals, drawing sets, punch lists, change events, meeting records, approval histories, attachments, and user activity.

Earlier versions should also be retained. A drawing revision may identify when design responsibility changed. A schedule update may show when delay first affected the critical path. A cost-report revision may establish when an asserted extra was first priced or approved.

Preserve Electronic Evidence Through Third Party Notices and Chain of Custody

Critical evidence may be held by architects, engineers, testing laboratories, scheduling consultants, subcontractors, suppliers, owners’ representatives, security providers, or software vendors. Counsel should identify unique third-party records and consider targeted preservation notices before retention practices eliminate them.

The company should also document its own collection. A defensible record identifies the custodian, source device or system, collection date, collection method, storage location, and transfers of the evidence. Illinois Supreme Court Rule 219 permits sanctions for unreasonable discovery noncompliance, while Federal Rule of Civil Procedure 37(e) separately addresses lost ESI in federal litigation.

Protect the Project Record With a Chicago Commercial Litigation Attorney

Once deletion, overwriting, or employee turnover destroys the only reliable version of a project record, legal arguments cannot recreate it. Grzymala Law Offices helps Chicagoland businesses identify and preserve critical ESI before a dispute reaches discovery; speak with a Chicago commercial litigation attorney and call us today.