Claims, Public Records and the Work Product Exception

Reprinted from the October 2013 BrickerConstructionLaw.com Newsletter

Download the complete October 2013 BCL

Construction claims analysis always involves both a technical analysis and a legal analysis.

Contractors consult with their legal counsel in an attorney-client privileged context in order to

gain an understanding of the legal issues with regard to contract terms, rights and remedies. Owners

and their agents need to engage in the same type of consultation to fully understand the legal

aspects of a claim.

In the situation where there is a disputed claim on a public construction project, there is often

correspondence about the matter between the public owner (“Owner”), its legal counsel, the

construction manager as agent, if any, and the architect. Pursuant to the terms of their contracts,

the construction manager as agent and architect are limited agents of the Owner so such consultation

is to be expected.

For example, in a case where a contractor claims that it was delayed on the project as a result of

some action or inaction of the Owner, it would be unusual for there not to be letters, emails or

meeting minutes from the construction manager to the Owner speaking about the issue. Similarly, in

the case where there is a defective work claim on the project, the architect will most likely have

some written communication with the Owner about the contractor’s responsibility for the problem. Some

of those communications may be public records available to the contractor, but some may be privileged

as “work product.”

It would certainly provide the contractor with a strategic advantage if it were able to access the

written communications between the Owner and its construction manager and architect about the

disputed matter when those communications constitute work product prepared in anticipation of

litigation.

Is this the type of documentation that can be accessed through the Ohio Public Records Act?

The first issue to consider is the definition of a “public record.” Under Ohio Revised Code

(“R.C.”) §149.43(A)(1), “. . . ‘[p]ublic record’ does not mean any of the following: (g) trial

preparation records.” Under R.C. § 149.43(A)(4), “‘Trial preparation record’ means any record that

contains information that is specifically compiled in reasonable anticipation of, or in defense of, a

civil or criminal action or proceeding, including the independent thought processes and personal

trial preparation of an attorney.”

Thus, the trial preparation record exception to the public records act is not limited to documents

prepared in the course of litigation. It also applies to documents that are compiled in “reasonable

anticipation” of a court action or proceeding.

The next issue to consider is the effect of a “Claim” on a construction project. AIA Document

A201–2007 General Conditions of the Contract for Construction, Section 15.1.1 states: “A Claim is a

demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other

relief with respect to the terms of the Contract. The term ‘Claim’ also includes other disputes and

matters in question between the Owner and Contractor arising out of or relating to the Contract.”

Thus, a Claim is a disputed matter, and a party asserts a Claim against the other party with the

anticipation of recovering some form of relief from the other party. Therefore, Owner documentation

analyzing the Claim can certainly be said to be compiled in “reasonable anticipation” of a civil

action, which would bring the documents under the category of the trial preparation records

exception.

Then, at the point a lawsuit is filed, the work product doctrine becomes relevant under R.C.

§149.43(A)(1)(v), which states: “‘[p]ublic record’ does not mean any of the following: (v) Records

the release of which is prohibited by state or federal law. . . . ” The work product doctrine is

contained in Ohio Civil Rule 26(B)(3), which states: “. . . a party may obtain discovery of

documents . . . prepared in anticipation of litigation or for trial by or for another party or by or

for that other party’s representative (including his attorney, consultant, surety, indemnitor,

insurer or agent) only upon a showing of good cause therefor.”

Thus, based on the text of the rule, the work product doctrine extends to the Owner’s agents and

consultants to the extent those documents constitute claims analysis prepared in anticipation of

litigation.

The capacity of the roles of the architect and construction manager is set forth in statutes, the

applicable agreements and the particular circumstances. For example, R.C. § 9.33(A) states:

“‘Construction Manager’ means a person with substantial discretion and authority to plan, coordinate,

manage, and direct all phases of a project for the construction, demolition, alteration, repair, or

reconstruction of any public building, structure, or other improvement. . . . ” Thus, by statute the

construction manager is certainly designated an agent of the Owner with significant “authority.”

Further, under the AIA Document A232–2009 General Conditions of the Contract for Construction, it

states in §4.2.1: “The Construction Manager and Architect will provide administration of the

Contract as described in the Contract Documents and will be the Owner’s representatives during

construction . . . The Construction Manager and Architect will have authority to act on behalf of the

Owner only to the extent provided in the Contract Documents.” Thus, the General Conditions often

advise the contractor as to the agency role of the architect and construction manager on behalf of

the Owner.

The circumstances of any particular situation will also factor into the issue. Indeed, if an

Owner seeks specific advice and consultation from either an architect or a construction manager on a

disputed matter with a contractor, then the work product doctrine could be employed to provide

protection for any resulting documentation.

As a result, the Public Records Act does not automatically compel a public owner to disclose
written communications between the Owner and its construction manager and architect containing their

analysis of disputed matters. The “trial preparation record” exception provides public owners with

the right to withhold documentation that relates to the analysis of disputed matters that is compiled in “anticipation of litigation.”

Note: Backup documentation for claims that may be kept in the ordinary course of business – such as the “bid takeoff,” job cost reports, field logs, and other such documents – would not fall under the category of work product.