Editor's Column

• Date: 01 April 2024
• Author: Lauren Catoe

Published in The Construction Lawyer Volume 43, Number 2, ©2024 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction LawThe Construction Lawyer Volume 43, Number 2

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Editor’s Column

By Lauren Catoe

This issue of The Construction Lawyer looks toward the future of construction law. The first article, “The

Revolution and Evolution of Discovery Disputes in the Digital Era,” takes on a topic that I find to be

overwhelming: electronic discovery. Most of our clients electronically store a significant amount of data

in connection with any given construction project on which they are participants. In the event a dispute

arises and litigation or arbitration commences in connection with a project, electronic discovery typically

is a key issue from the get-go, and it can result in the expenditure of a lot of time, effort, and money.

Perhaps because of that, as the scope of electronic discovery has expanded, the frequency of discovery

disputes has increased. In this article, with a focus on electronic discovery, authors Andrew P. Atkins and

Caragh McGovern Landry begin by reminding us of the purpose of discovery and outlining common

disputes regarding the same. Following that discussion, they suggest best practices and proactive tips for

reducing the likelihood of electronic discovery disputes in future matters.

In “Trends in Design Assist and Design Delegation,” Richard W. Foltz, Jr., Jennifer Flynn, Robert C.

McCue, P.E., and Joy Spillis Lundeen address how the concepts of design assist and design delegation

have evolved as technology and project delivery methods have expanded in the construction industry and

construction projects have become more complex. They discuss the current treatment of those concepts

in various jurisdictions and in industry contract forms. The authors strongly recommend expanding the

general framework set forth in industry contract forms for design assist or delegated design by including

cautionary caselaw examples that outline “the importance of clearly defining the roles and responsibilities

of the parties in the contract.” Contracting parties must communicate their specific intent when it

comes to design assist or delegated design. If they fail to do so, costly disputes or other unintended and

undesirable consequences may be in their future.

The final article of this issue, “Picking Up the Pieces: A Call for Federal Structural Inspection Laws in

the Aftermath of the Surfside Condominium Collapse,” was written by Spencer L. Woods and is the

winning article of the ABA Forum on Construction Law’s 2023 Student Writing Competition. In his

article, Spencer discusses critical events and decisions before and after the 2021 collapse of the Champlain

Towers South condominium building in Surfside, Florida He includes an overview of periodic structural

inspection requirements for condominium and other community housing settings in different jurisdictions,

noting pros, cons, and differences among them. Spencer concludes his article by proposing federal action

to help establish minimal structural inspection requirements that would apply across the United States

to condominium and community housing settings, with the goal of such action to avoid future tragedies

similar to the Champlain Towers South collapse. Spencer is a 2024 graduate of Hofstra University

Maurice A. Deane School of Law, and he plans to continue his participation in the Forum. I am confident

that he has a bright future ahead of him. Congratulations, Spencer!

NOTES FROM THE EDITOR