Confidentiality of Topographic Survey & Survey Contract

[APCOR75A]

Lot 9 was subdivided into 3 parcels by deed. Parcel 1 is a rectangular lot adjoining Palos Verdes Drive. Parcel 2 is a vacant flag lot with 20-foot drive way adjoining Palos Verdes Drive. Parcel 3, my client is a rectangular lot with the s'ly 150 feet adjoining Palos Verdes Drive but sloping 2 to 1 so they use that portion of Parcel 2 as drive way to the house even though they don't have an easement. I was hired on 2003 to do a topographic survey which will show the cross section of Parcel 3 to satisfy the City's hillside development requirements. On my contract I specified that this is not a boundary survey. On the topographic survey map, I put on the surveyor's note that boundary survey and location of easements are to be done by others and the map does not show any boundary line at all, only contour lines, location of elevation shots, the foot print of the house and the cross section.

Last year, 2012, parcel 2 filed a lawsuit against Parcel 3 for using portion of parcel 2 as drive way without having an easement. The lawyer for parcel 2 served me a subpoena asking me to testify in court and to submit to them all the maps and documents I have in connection to parcel 2, all contracts, communications I have with my client and all digital drawing if I have any, I contacted the subpoenaing lawyer and told them that I will look for the documents because its been 10 years now and I only keep 5 years of documents in my filing cabinet at the office. I talked to parcel 3's lawyer and they told me over the phone that it is okay provide parcel 2 lawyers the documents they subpoena but when I asked them through email that they give me a written release from any liability, they won't provide me with any.

I am planning to appear in court with the topographic survey and the contract and surrender it to the judge. Is this the right move. The court hearing will be this Tuesday, March 19. Will I be hit with violation of Surveyor's ethics if. Will i be violating any confidentiality law with my former client, parcel 3 if I give up the map?

I would greatly appreciate your opinion/advise.

[E_Page]

The subpoena was part of discovery. As to what, exactly they are entitled to in your files, you should ask your attorney. When you asked the Parcel 3 attorneys for a written waiver of liability, you may have only been thinking about the confidentiality issues between you and your client (owner Par. 3), but they were more likely considering the broader liabilities.

As to confidentiality issues, you probably need not be concerned because as a party to the lawsuit, your client would have had to produce any of the documents had he had them in his possession.

As to the waiver of liability, your former client's attorneys want to preserve the ability to sue you should their client lose. There is no way that you would ever get them to agree to any such waiver.

As to witholding all contents of your file until the court date, not a good idea. The Parcel 2 attorney is going to tell the Judge that he has not had the opportunity to review those materials, which he properly requested with a legal order as an officer of the court, because you did not cooperate and refused to lawfully produce the information ordered. Read the fine print. You don't want to be in violation of your legal obligations.

If you are concerned about producing anything in particular, talk to your own attorney, sooner rather than later. You may not be under obligation to provide absolutely everything (but then again, you may). Your former client's attorney is not your attorney. In fact, that attorney is your potential future enemy. If his/her client loses against the neighbor, there is a very good chance that they will come after you to recoup any damages.

See your PMs for additional discussion.

[land butcher]

You need your own atty.

Some years ago I was discussing record keeping with someone who worked for a large firm that only dealt with the feds. He said they religiously destroy all records once they are 7 years old. BUT, you have to do this to all records and in a timely matter after the 7years.

Had you been doing this the answer could be simple. Now it's not. It could be a double edged sword, ie destroying evidence that could protect you, but that's a personal call.

Amazing how a simple, and probably low fee, topo can become an expensive legal nightmare. Remember we have unlimited liability.

[land butcher]

Some will probably ask if you got the CLSA contract signed.

Which brings up another question I asked on another thread here recently and got zero replies.

How many on here get anyone, esp a corp, to sign that contract?

[APCOR75A]

Thank you for sharing all your opinions. I appreciate your collective knowledge and unselfish desire to share your experience.

I talked to the attorney of my former client this morning and he told me that they are seeking what he called "equitable" easement for the use of that portion of parcel 2 as driveway. (i was thinking, it should be prescriptive easement)
Then it was followed by a phone call from my former client asking me if I did a boundary survey for him and I said "I did not perform any boundary survey because it is not part of our contract. It was clearly stated in the contract that it is not a boundary survey and location of easements are to be done by others, and he said that is "good, you don't have anything to worry about because you just did what I hired you to do", and I said "Thank you".

The contract is to do a topographic survey so we can determine the cross section of a certain line cutting across the garage and portion of the main house. On my topo, i did not even have to shot the whole property. I shot the slope north of the house, the footprint of the house and that portion towards palos verdes drive and across the street, actually more than enough just to show the natural slope across the garage area. On my Surveyors note, again I included that this is not a boundary survey and location of easements and underground utilities are to be done by others. I also have the following disclaimer: The map may be provided in an electronic format. The delivery of the electronic file does not constitute the delivery of my professional work product. The signed printed copy delivered with the electronic file constitute my professional work product and in the event the electronic file is altered, the print must must be referred to, for the original and correct survey information. Apcor75a, PLS shall not be responsible for any modifications made to the electronic file or for any products derived from the aforementioned professional land surveyor.

I would appreciate your comments, improvements and suggestions on the disclaimer and perhaps it could help others who do not have disclaimers on their map or is it really necessary, I think it is additional protection for us surveyors.

[APCOR75A]

Thanks Ken for sharing your experience on subpoena.

The job that I did was not really a typical topographic survey. The job is to show the cross section of a line passing through the newly built garage. The purpose is to show the natural slope of the hill side towards Palos Verdes Drive. In fact I could have done it with 20 to 30 shots along that line to as high as I could towards the hill. So, the boundary is irrelevant and the owner knew that I am not going to determine where the boundary is per agreement nor even show it on the drawing. What is important is for the City of PV to see the cross section.

[land butcher]

I recently had a call, person owns 2 adjacent lots and wanted the vacant one surveyed. Google shows a new house on the other lot. When I asked about that lot and property corners he stated that an Engr did the topo without a boundary. When he complained that he needed pls for construction of the house the engr came out and set some spks that are probably gone now. No RS or CR on file.
This would be a good case for the board to investigate. If they want the property address I'll be glad to supply it.

[RAM]

while working in private sector, always had a signed contract before starting any work, even from the corp's. Didnt get some jobs because of it, oh well.