Constructed Futures

CTQ Issue Brief: Exploring the Risks of Construction Image & Model Sharing with Josh Levy of Document Crunch

Episode Summary

A common concern amongst construction teams is whether creating and sharing images and models with other teams creates risk. There is no simple answer, but Josh Levy and I did a little research and produced a short paper that helps prepare field and office personnel to feel more comfortable that they understand what creates risk, and what doesn't. The full paper, part of an ongoing series of Construction Technology Quarterly (CTQ) Issue briefs can be accessed in the link in the Episode notes.

Episode Notes

Full Paper Link:

Episode Transcription

Hugh Seaton: [00:00:00] Welcome to constructed futures. I'm Hugh Seaton. Today I'm here with Josh Levy co-founder and CEO of Document Crunch, for a second round. So Josh and I actually worked together on something I want to share with you, but first I want to welcome Josh to the podcast. 

Josh Levy: [00:00:16] Thanks Hugh. Thanks for having me. 

Hugh Seaton: [00:00:18] So what Josh and I have just worked on, and by the time this is published, it will also be published, is a short paper that explores some of the risks of model sharing and photography and some of the other kind of image-based activities that are going on on job sites right now.

This kicked off with a panel that Josh was moderating for the construction progress coalition,their monthly panels. And I think we were talking about reality capture. But anyway, we started off thinking, okay. It's feels like the industry doesn't necessarily know the ins and outs of what these risks are, so let's go into it.

So Josh again, thanks for joining. Let's start a little bit with how this even kicked off from, from your perspective and like where that led us to. 

Josh Levy: [00:01:07] Yeah, absolutely. I think on the construction progress coalition round table that I was hosting, some, just questions had come up about, you know, sharing different models that that subcontractors or contractors were creating and , some pitfalls that I saw.

You know, with regard to that type of data sharing, which as we know, and what we talked about in the paper, it's a fairly common issue that arises, right? I mean, there's all this information and proliferation of information on projects. And what good would that I think this, the angle that actually came up with the round table is, what good would that information really do if you can't collaborate and share. And the whole project can't benefit from the work product of the person sourcing that information. 

So I think that, through that discussion, what came about was there wasn't really a collective awareness around what some of the implications were with regard to that, except what we sensed, Hugh, and I think why you approached me was the sentiment that you'd observed is that because people didn't really have much understanding around these issues, they were inclined to just be totally closed off and not collaborate. Which I think undermines the very purpose for having this type of information.

Hugh Seaton: [00:02:23] Yeah, that's exactly right. It's this the sense of some sort of a dark cloud of uncertainty and risk and people are like, you know, just shut it down. We'll use what we make and that's it. And I think where that led us pretty quickly is, is there's a  word that, you came up with Josh that I want to kind of reiterate a few times through this podcast, and that's this idea of issue spotting and what to do when you have spotted an issue. And this is not really that, but basically I said, Josh, you know, what can we do about this? And you did what people do, you said, well, I'm going to go research it. Right? You want to talk a little bit about, about how that relates to how, you know, legal problems like this get solved, right? Is that you say, I don't know everything, but I know how to go find it. 

Josh Levy: [00:03:05] Absolutely. And I think that's probably the common misunderstanding when people come seeking advice from, at least in my career as being, an in-house counsel. I am not a subject matter expert on 100% of all issues that come across my plate.

And I don't think any lawyer is all knowing and has just this unbelievable depth of working knowledge about all of the myriad of universal issues that would affect a construction company or any business for that matter. So I think what really is important and how you think about risk management and how you think about project teams being better, it's counseling them around awareness as to issues.

So You know, that's what this is really about. And as it pertains to this topic, it wasn't so much of "let's come up with, a how to manual let's let's prescriptively, let everybody know exactly how they should vantage all of this." 

What we intended to do here is in line with, what I take would just be good, prudent businesspractice for anyone, which is to be, let's create some awareness around these issues. Let's look at what we've commonly observed because we're involved in the industry. And then let's look at what some of the known implications around those issues are. And I believe that if you can accomplish those things, if you can help create awareness around issues, that's when you start creating wherewithal for those, you know, that you're working with, advising if you know, in a more traditional sense and that wherewithal allows those people, and in this case Hugh we're hoping to help educate some project level operations personas in the industry with a little bit more wherewithal and awareness. They'll be able to make better decisions and manage and administrate their day-to-day lives better and be able to balance, you know, more specifically in this case, the benefits of this proliferation of data, sharing it, making construction more efficient against maybe what some of the risks are.

And hopefully less fear will guide their actions, which is what I think you were observing is happening out there. And that wherewithal wall allowed them to actually make better business decisions, understanding maybe some of the upsides and downsides around these issues. 

Hugh Seaton: [00:05:33] And I think what, what we just discussed brings us to the next point, and that is, you know, without overdoing it, how the law actually works in the U S right. And that is that no one writes a law that covers every situation.  Thankfully, because it'd be a, it'd be a really long law, but also it would just stop you from doing a lot. So typically the way. We're and again, I want to be careful, I'm not a lawyer, Josh is. But as somebody who operates within the law, you know, that the point of how laws are written is to be sensitive to facts on the ground. Right? Josh, that one of the things we found is that, that there aren't that many cases out there because people haven't written laws specific to scanning and BIM and so on and so forth. So you have to ask yourself, all right, what has been said and what has been discovered, and, and let's start with you know, a solid knowledge of what has been, gone through courts and gone through cases and then take some implications from that. Does that make sense? 

Josh Levy: [00:06:35] Yeah, absolutely. And look, there are certainly some cases where there are some prescriptive laws.  And there's, by the way, there's whole legal systems in other countries. And I believe in the great state of Louisiana, which are actually based on code, the US is not based on code, generally speaking, the US is based on precedent, which is based on courts interpreting certain laws.

So there's so much factual nuance around how ultimately the law is applied. And that's how it works in the U S you're absolutely right. So the idea is to have a general awareness of the framework, a general awareness of what the implications of that framework are, and then to make an application based on the facts that you know about.

And that's all ultimately, at the end of the day, subjective, not objective. Which means there's a lot of human dynamic that goes into how these laws are applied, interpreted enforced, et cetera. And so the best that we lawyers can do, you know, in the profession of practicing law, Is understand the framework, understand that the speed limits 15 miles an hour, and then look at all the cases where speeding tickets have been issued hadn't been issued, why they may have been issued, why they haven't been issued and extrapolate what would likely happen in the current scenario? 

Hugh Seaton: [00:07:58] And so bringing this into the context of right now, where we've got this paper that , and when this gets published, there'll be a link to it and all that stuff, is the idea that, that what we've put together is, you know, Josh and and some partners of his, that  went and did some of the research as well, so there's a fair amount of work that went into this. 

It isn't saying you can, and can't do these things. It's, here's a starting point to help you understand where the risks are. And the next level after that is, what contract are you working from? Right. Cause that's gonna also spell out some of where risks might or might not be whether somebody did or didn't put, you know, who owns the rights to what, what gets captured or generated and, what the standard of care is for passing things back and forth.

And that's actually where, and Josh is gonna let me do this, but that's where Document Crunch also will help. Right? Like, so on the one hand you're saying. Your general understanding can be aided by a paper like the one we're publishing. The next level after that is what's actually in documents like, like, so there's the law that's that lays out general guidelines and frameworks, and there's some cases that help you understand it, but then there's the way you've agreed to do business with somebody, and that's a contract. And that'll really start to spell out how, or it should spell out some of how things work. 

And because those documents are massive, another way of understanding your risk is to work with a tool like document crunch that can help you to navigate, again what can often be a pretty big document?

Josh Levy: [00:09:30] Absolutely. And you know, it's interesting. So we start off from this macro perspective that laws know that the law in the US is subject to interpretation, right? That we don't have like a codified framework for every single nuance that could impact a construction operation. 

But Hugh, as you'll recall, I think of all the issues that we talked about in the paper, only one of those issues is what I would call a common law issue. And the rest of that paper focuses on understanding how these issues are dealt with in a contract. So the neat thing about our democracy is that, with the exception of contracting to do some pretty illegal things or some things that would be just so against public policy, the courts will allow parties to essentially codify their rights and obligations to one another, in the form of a contract. 

So you can establish a very clear framework by which the rights and obligations and liabilities of the parties exist, vis a vis a contract. So to your point, being aware of what these hot buttons issues are, what some of the implications would be, if they were not codified in the contract, it gives folks the opportunity to strike the right balance for themselves, in the contract. 

And you're right, Document Crunch, and, you know, I'm sure there's other avenues to    do this as well, but I would say any tool, and so Document Crunch is a great example of one, but , any resource that you could have that can help you identify those key issues in your contract and make sure that those issues are appropriately balancing the upside versus the downside, given the realities of your, of your project, would be of a great benefit and I'll just use a very easy one. And we talked about this in the paper. We talk about how, and I've seen this. I don't know, hundreds of times in my career, we've talked about how, for an example a hotel project, that's being built in the middle of a major metropolitan area, an owner in their contract may state that this project, including the name of the hotel, the contractors involvement in the project shall remain confidential and at no point shall be disclosed. And I would argue in that if I were,  looking at that contract, what I would question is, is that at all a reasonable standard to impose on the contractor? 

Meaning that, is it reasonable to expect that no project engineer is allowed to tell their family that they're working on the new cool hotel project in the middle of the city? 

There's going to be signs up for crying out loud. Is it really reasonable to try and enforce that type of a standard on the project? My answer would be, it's probably not reasonable, but if you didn't understand that that was in your contract, you could unknowingly sign up and then in theory, be held to that standard, which could create all kinds of unforeseen consequences for you down the road. 

And that's an example of being able to spot an issue in your contract. Being able to look at your situation, say, well, that doesn't seem logical under the circumstances, and hopefully be able to push for a better, more fair or more manageable standard. And what I just walked you through here is basically. How I would negotiate a contract on all levels. That's what it is. It's being able to understand the issue, apply the facts of your situation to that issue, and then make a logical decision as to whether, you know, the risk is appropriately balanced or the upside is appropriately balanced or whatever it is, as it applies to the facts of your situation and that issue.

Right. So I would always counsel my teams and I would still, you know, still advocate that this is, again, it's not so much illegal advice. It's just good business sense. Don't sign up for an obligation that you can never meet. That's a terrible starting point. I would never counsel someone to sign a piece of paper with an affirmative obligation that I knew they could never meet.

Hugh Seaton: [00:13:47] That's a big one, right? Cause you get, bewildered by all of the standard clauses and how many pages of a contract can be. But when you figure out, okay, here are the, here are the places you need to focus. And then you ask yourself, is this just somebody putting it there to have a negotiating point? And is this worth fighting? But at the end of the day, you're right. You're going to have to live with whatever that is for some time. I want to go to another point though. And that is that as we're talking about these. You know, clauses in there that may or may not get you in trouble, the flip side is true as well. 

And I think that's where, what we found in the paper and what, you know, just from discussions with people is: if you, as a subcontractor, who's generating knowledge and generating you know, scans and so on are concerned about, you know that it's part of the workflow, that is starting to make you as a company good at what you do. And that's very common now across the industry is VDC teams are now doing some amazing things, both at the contractor level and the subcontractor level. And they're doing scans to make sure that that where they think there's going to be room, there actually is room. And I think one of the things that I'd like us to discuss right now is the reality that if, you know, as a company that this is important for how you get work done, that you can go and say, okay, I want to be in the contract that we're going to, we're going to talk about how that IP is governed and how the risks are handled. That isn't something that a layman should go and write the words for, but you engage your legal counsel to say, I want to be protected on this so that we can go and do our jobs better.

Josh Levy: [00:15:17] Yeah. So, I mean, the great news is that these are, you know, with the exception of very rare circumstances, a lot of these issues have been addressed by the industry and there's resources available to ensure that you're appropriately covered. You don't need to re invent the wheel. In fact, I think we cite to Consensus Docs has some great, a great framework around them and all the obligations and IP rights, et cetera in the BIM process, which of course can be modified, but it's a great starting point.

So that's absolutely right. It is crucial and it's imperative to make sure that you're getting the appropriate standards in your agreement. 

Hugh Seaton: [00:15:55] And I think related to that, and where I would like to underline is, as the operating team, whether it's the PM or, or more senior or, or, or the foreman, this is an area where you can say, I want to make sure and ask the question, this is back to the issue spotting, I guess, but ask the question is our contract, does it include language that allows us to reduce the risk of sharing scans and, and drawings and models that we create to get our job done. Have we covered it so that I can share this, and there isn't some unknown risks that I don't understand. I think that's something that an operator can ask that question. 

And to your point there's language out there, that's been kind of, you know, beat up a little bit and vetted and kind of used in reality that people can, can draw from.

Josh Levy: [00:16:43] I think that you just hit on probably the most important point and , it actually follows a trend that I've seen time and again, in my career, the best negotiations that I've ever had, the best contracts that I've ever been a part of consummating, were those in which I had an operator hand-in-hand lockstep with me throughout the negotiation. The worst are when you have two people, two lawyers or two people in the back office that don't necessarily appreciate the nuance of a construction project day to day. And I've been in this industry for a long time, but most of my time has been spent in conference rooms and office buildings. Not, I I've been to plenty of projects, but I haven't lived the life of a project manager.

And it is incumbent upon operators, to your point, to ensure that whatever is being agreed to. Can be managed, can be enforced and can be administrated, which goes back to the points that we were talking about earlier. 

And so my challenge to those listening to this is, think about it this way. If the people negotiating your contract are the legislative branch, you're the executive branch, you need to enforce those rules. And if those rules are dumb or inappropriate or not manageable, I would think that you would have some agency in that because you're ultimately the person who's in charge of living with that framework. So to your point, Hugh, having awareness of those issues, being proactive, championing those issues, making sure that those issues are being appropriately addressed is incredibly important.

And it, and I have seen, I guess this is more anecdotal than empirical, but overwhelmingly, when I see collaboration between the negotiators and the field, you get a better result than when those two functions are siloed. 

Hugh Seaton: [00:18:41] And I think that's, you know, it's funny how this pattern shows up over and over again, but it's true when you're, you've got people creating software, when you've got people creating marketing, when you've got people creating anything, if the people who are using it and the people who are specifying what's needed aren't intimately involved in the process. You wind up going somewhere that isn't where you intended, and that's just as true in the legal environment as it would be anywhere else. Right? Is you not knowing the nuance of a project means that you're not going to be able to make some of the finer distinctions about, well, we should cover this, but not cover that or, you know, here's the situation we want to make sure is covered. Because you're not, you're not thinking about quite who's going to be in the field and, who's going to be on the project. And that, again, that pattern shows up everywhere. That's what design thinking is all about believe it or not. I mean, I didn't expect to be bringing design thinking up in a conversation about contracts, but that's the same pattern, is that unless the people who are using a thing and specifying thing are kind of deeply involved in creating it, you wind up going somewhere that isn't as good as it could be. And often includes things that just aren't helpful. 

Josh Levy: [00:19:48] Oh, I'll tell you. I used to joke with the project executives and other executives that I would be advising and I'd be advocating that they come and join me for, to collaborate in these types of exercises. And I used to say, if you leave it to me, this was a bit bit self-deprecating. If you leave this to me, we're going to have the tightest contract ever, and we're going to have the safest project ever. But we literally won't build anything. 

Hugh Seaton: [00:20:13] I love that. That's a great, that's a funny way of putting it and that's you're right.

I mean, that's, this is what you learn as an operator too, is the job of a lawyer is not to design your process or your project it's to keep you out of trouble and help you to protect yourself. 

Josh Levy: [00:20:29] That's exactly right. And so I think going back to just the macro takeaway from this article, Operators need to have awareness.

If you're going to be worth your weight in gold in this industry, you need to be accountable and an owner of the contract, because if you're not, you're going to suffer from one of two things. Either you're going to lose successful outcomes at the project level, or you're going to set yourself up for failure by not influencing the outcomes and the negotiation.

And that's really what this boils down to. 

Hugh Seaton: [00:20:59] And I think I would add to that though. Also what really drove some of the initial idea behind the paper is not only all of the things that you just described, but also the fact that you may not be able to operate as efficiently and productively as possible. Because you'll be afraid of doing things that you can do. That, that aren't really a risk because... and isn't really the senior levels, this is the folks in the field that might not be doing things in terms of sharing information and discussing and so on because they don't understand the risks and the risks haven't been really kind of vetted out.

So to bring us home a little bit, you know, you can think about the paper that is, that is part of this podcast and, and kind of why we're doing it as, as you know, an, an overview of what's out there and, and it shows you both some good things that really help you understand the risk, but also shows you what hasn't been spelled out.

And that's up to you as you develop a contract. And as you think about a contract, again, I feel free to plug Josh's product    that, you know, that Document Crunch and the tool like it. And I don't know that there are any tools like it, but that's another story, can help you to then say, great. Now I understand that out there in the world, I understand what the risks are, at least how they've been spelled out.

Now I can think about it in my document. How am I going to cover us and make sure my teams are free to operate as effectively as possible without being worried about creating some unknown risk, you know, in far off litigation. And the final point being when , you know, when you've gotten to that point, that's when you call in counsel and say, okay, here's the things that we need to , assess and make sure are put together the right way. There's sort of three layers in my mind of going from general understanding to a contract specific kind of understanding of what you're talking about. And then, you know, then you need to pull in a human to actually kind of finalize it.

Josh Levy: [00:22:42] I think that's right. I think, you know, having awareness leads to wherewithall, having wherewithall leads to knowing when maybe things are getting a little hairy. No one expects that you're perfect. No one expects that I'm perfect, but what I think if you're going to have growth in this industry, I think what's table stakes is you have to have the wherewithal and it starts and wherewithall starts with having a basic fundamental understanding of being able to understand, to spot issues, to see where there's potential for problems or even potential for opportunity for that matter.

And then having some understanding of, you know, how you connect the dots between, okay, I've identified that issue now, how am I going to effectuate the right outcome? Is that something that I'm comfortable with? I've seen this 10 times. I know exactly how this works. Is this an area of first impression for me? Is this something that maybe I should pull in some additional resources? I know you alluded to counsel you, but you know, maybe it's just a more seasoned executive who's who's been there, done that. And then it's ultimately putting together a framework that you know is manageable and that you can effectuate at the project level.

Hugh Seaton: [00:23:52] I love it. So, so thank you for, and apparently we have some some fans, so 

Josh Levy: [00:23:59] my dog just gave us an amen to that. 

Hugh Seaton: [00:24:01] Love it. The period at the end of the sentence, Josh, thanks for working with me on this and thanks for putting together what I think is a really great resource. And I hope that we're going to be able to do some more like this in the future.

So thanks again. 

Josh Levy: [00:24:14] It was a pleasure Hugh. Thank you for the time.