Is a text message a writing? Project communication is constantly evolving, and text messages are an increasingly common way teams share pictures, video, and provide project updates. When texting is part of the communication flow on a project, contractors and owners might text approvals for extra work, notices of changed conditions, or other information that could be a basis for a change order.

            In a text exchange about a compensable event, the notice, reply, and approval are all saved on the phone. But contracts often contain specific requirements for a contractor or subcontractor to request changes and authorization to proceed may be specifically required in writing.

            For example, the Associated General Contractors of Washington – 2018 Standard Subcontract says the “Subcontractor shall make no claims for extras unless the same shall be agreed upon in writing by Contractor prior to performance of any such extra work.” (emphasis added).

            The AGC subcontract doesn’t define “writing,” so the subcontractor and contractor might wonder if a text message exchange about a potentially compensable event was an “agreement in writing.”

            Washington has enacted the Uniform Electronic Transactions Act (“UETA”) which states that “A record… may not be denied legal effect or enforceability solely because it is in electronic form.” RCW 1.80.060(1). A text message likely meets the definition of a record, which is “information…stored in an electronic or other medium [that] is retrievable in a perceivable form.” RCW 1.80.010(15).

            But this doesn’t mean the text messages automatically satisfy the “in writing” requirement of the contract.

            The UETA only applies to “transactions between parties each of which has agreed to conduct transactions by electronic means.” RCW 1.80.040(2) (emphasis added). Whether the parties agree to conduct a transaction by electronic means “is determined from the context and surrounding circumstances, including the parties’ conduct.” RCW 1.80.040(2). In other words, whether the UETA applies is analyzed on a case-by-case basis.

            Washington courts have not determined exactly what indicates a party has agreed to “conduct transactions by electronic means.” Courts in other states, however, have determined that ongoing participation in electronic communications shows an agreement to conduct transactions by electronic means. See Int’l Casings Group, Inc. v. Premium Standard Farms, Inc. 358 F.Supp.2d 863, 875 (W.D. Mo. 2005).

In another example from Mississippi, email correspondence between a buyer and seller regarding a potential equipment sale spanned more than two months – illustrating an agreement to conduct the sale by electronic means. Parish Transport LLC v. Jordan Carriers Inc., 327 So. 3d 45, 51 (Miss. 2021).

            Although a fact specific analysis would be performed in each case, a comment to the model UETA –the basis of Washington’s law – says something as simple as using a business card with an email address is a reasonable basis to conclude that someone consents to do business electronically. UETA §5, cmt. at 4.B. The intent of the model legislation is to have “the widest possible application consistent with …removing barriers to electronic commerce.” UETA §5, cmt. Therefore, even a seemingly minor act (like using a business card with an email) can show an agreement to conduct transactions via electronic means.

Given that proposals, RFI’s, submittals, project updates, and other correspondence are typically sent via email, drop box sites, or through project management software (e.g., Kahua, Procore), it is conceivable that project owners, architects, contractors, subcontractors, and suppliers will all have consented to electronic communication on a project.

If the parties agree to transact electronically, a text message “may not be denied legal effect or enforceability solely because it is in electronic form.” Progressive Advanced Insurance Company v. Corekin,  No. CV DKC 16 1340, 2017 WL 4122821, at *9 (D. Md. Sept. 18, 2017).

Considering a text a “writing” is also consistent with the basic principles of the UETA – the choice of medium “does not alter the outcome of disputes between the parties…whether the parties deal in a paper world or electronic world, their relationship should be subject to the same legal principles.” Patricia Brumfield Fry, Introduction to the Uniform Electronic Transactions Act: Principles, Policies and Provisions, 37 Idaho L. Rev. 237, 249 (2001).

However, proving a text message meets the requirements for a writing might not be the end of the story. The UETA will not help if the dispute is over the content or timing of a text message.

            For example, AIA 201 (general conditions) §1.6.2 says Notice of Claims “shall be deemed to have been duly served only if delivered to the designated representative of the party to whom the notice is addressed by certified or registered mail, or by courier providing proof of delivery.” In this case, a text message likely doesn’t meet the express requirements of the contract – even if it got to the right people.

            A contract may also require a party to provide specific information which is unlikely to occur over text. For example, the 2018 AGC Standard Subcontract says the “[s]ubcontractor shall promptly provide within three (3) days after written demand, a statement in writing, including supporting documents, setting forth what amounts…are due or payable by Subcontractor…” In this case, the Subcontractor is required to provide “supporting documents,” which are unlikely to be provided by text.

Text messages are also often less formal and lack the context that may be provided by transmittals, emails, and meeting minutes. This context may be difficult to recreate during dispute resolution, opening the door for disagreements over the meaning of a text message.

Comment: In most situations, a text is a writing, However, Washington courts have not provided details for how this operates in practice. To avoid potential pitfalls, contractors should understand and follow the specific requirements in their contracts.

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