I have been watching this discussion with some interest and I think it is important to clarify a few points that have been raised.
First, your work product is your work product. You can't release it and somehow divorce yourself from it. While I realize the notion of releasing the work product and somehow disclaiming responsibility for it is attractive, it really isn't possible.
Second, recognize that if you do release your work product in some manipuable form, it can and likely will be manipulated. When your details manifest themselves on other projects (and despite the fact that you may get an agreement to the effect that they won't they still may - people breach written contracts every day).
Finally, we tend to place too much reliance on indemnification. Indeed, a contractor may agree to fully indemnify you when or if a lawsuit is filed arising out of their use or reuse of your documents - effectively a contract wherein the contractor agrees to pay the costs of defense and any judgment in the event you are successfully sued on account of their use or reuse of your documents. That is fine, but understand it doesn't prevent the lawsuit from being filed. Understand also that contracts are breached every day (see above). If you are sued you can demand the contractor indemnify pursuant to the indemn indemnification agreement. If they still exist and are capable and willing to do so, fine. If not however, then you still have to defend the lawsuit. You may also have a second lawsuit aimed at attempting to force the contractor to honor the indemnification agreement (presuming they are still in business - if not you are simply out of luck).
The point is simply that we rely heavily on these sorts of indemnification agreements for all sorts of things - in this context and many others. When they work they are fine. When they don't (which is more than just once a while) they actually cause as much or even more harm then they do good. I have seen indemnification agreements work in many contexts and I have seen them fail in many contexts - were I to count I would say the count is about even
The bottom line - releasing your documents in a form subject to manipulation carries risk - a risk that can't be completely disclaimed. Indemnification is one method for managing that risk to a degree but keep that device in perspective and understand it isn't bulletproof. While it lowers the risk, it doesn't eliminate it. There is no way to eliminate it in a manner consistent with current law.
Indeed, this very issue is at the core of the debate over integrated practice. True integrated practice models require the Architect to permit others to manipulate the building information database. Unfortunately the law is reactionary. For a time the law will force fit old legal concepts onto developing business models. Eventually the law will change to reflect the development of those business models, but until it does there is generally a painful period of adjustment. While I have heard integrated practice advocates suggest the law simply must change, the reality is it won't do that quickly enough to satisfy those advocates.
The point here is simply that to manage your risk you must appreciate the nature of the risk you face. While indemnification and hold harmless agreements and disclaimers are better then nothing they still carry a degree of risk. Knowing that and factoring it into your decision making is better than learning it later.
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Frederick Butters FAIA, Esq.
Attorney
Southfield MI
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