When engineering work is being done, careful consideration must be given to the doctrine of spoliation of evidence. This is a doctrine that says that before any repair work or invasive testing is done that substantially affects the original condition of the property in question, fair notice must be given to any person who may have an interest in that work. Failure to give fair notice in advance of the work can mean that the plaintiff doing the work can have its proofs barred at trial.
The point of the spoliation of evidence doctrine is to make sure that contractors, material suppliers, design professionals and anyone else who may eventually be sued for design or construction-related claims has adequate notice and a fair opportunity to view the existing “as- built” condition of the property before any repairs or major invasive testing are done. The theory is that if such a person is deprived of the opportunity to inspect the as- built condition of the property, the person is essentially deprived of the ability to mount an effective defense, or to make claims against third parties it believes is responsible for the loss. Notice should be given if the property is about to be repaired; it may also be necessary if extensive invasive testing is going to be done.
For example, if you have a client who is going to demolish extensive portions of one side of a building to see what the condition of the sheathing or framing is, or to observe and document mold conditions, then notice should be given. If your expert is just going to do some small test cuts of the exterior cladding, then notice probably does not have to be given, since you are not affecting the ability of the defense experts to either re-open the test cuts done by your expert or do test cuts of their own.
Giving notice is a judgment call for counsel. The Stark & Stark Construction Litigation Group recommends that counsel err on the side of caution and give as much notice to as many people as possible. For example, we do a lot of cases involving deficient installation of building envelopes. We often have no idea who the manufacturer of the defective exterior cladding is. Before we allow our clients to tear off the cladding and fix their buildings, we give notice to every product manufacturer and distributor we can think of. We also ask the developer or general contractor to give written notice to all contractors and design professionals who worked on the project. By being as expansive as possible, you limit your exposure to the spoliation of evidence defense.