He Said/She Said is Not a Good Plan
The specter of litigation will never instill peace of mind, but engineers are wise to implement document retention practices to prepare for the moment we all hope will never come. If you find yourself facing a lawsuit, the documents that you provide to your attorney will serve as the foundation of your defense. Keep in mind that the strongest defense is one that doesn’t merely fit your version of a story against someone else’s or require huge leaps in reasoning and facts to overcome missing information. The best defense is built on the most complete story that you can tell in black and white.
By Terri L. Stough, Esq.
Following the World Trade Center attacks, the ASCE/ Structural Engineering Institute (SEI) provided comment on the recommendations for building and fire safety drafted by the National Institute of Standards and Technology (NIST) wherein document retention emerged as a recurring goal. While the ASCE/SEI agreed with NIST that the preservation of as-built drawings would assist in the rehabilitation of structures, it expressed concern that the retention of a broad range of documents would serve no purpose toward safety and structural performance. The ASCE/SEI further opined that it may not be necessary or beneficial for the Engineer of Record to retain all documents for an indefinite period; rather, it was suggested that the building owner should be responsible for the retention of drawings.1
The debate framed by the ASCE/SEI and NIST identifies the three most important considerations for developing your document retention practices: Which documents should be retained? For how long should documents be retained? And who should be entrusted with document retention?
Let’s address the easiest question first. The best person to retain documents concerning your projects will always be you. In volatile construction and related industries, you can’t count on other people to preserve crucial evidence on your behalf. This is particularly true where the failure to preserve documents or other evidence will result in sanctions, such as an instruction to the jury that it may presume the spoliated evidence was proof of your liability. Whether or not you had a duty to preserve the evidence will depend on state law. In Texas, the duty arises if you know or reasonably should know of a substantial chance that a claim will be filed and the evidence is relevant and material.2 Your duty to preserve evidence in Illinois will be based on your relationship to the plaintiff and whether a reasonable person in your shoes would have foreseen that the evidence was material to potential civil litigation.3 These are not issues that you want someone else to evaluate for you.
If you find yourself facing a lawsuit, the documents that you provide to your attorney will serve as the foundation of your defense.
Now that you’re prepared to take matters into your own trusted and capable hands, it’s time to face the morass of project documents and determine what you should keep. Although recommended for architects, the American Institute of Architects (AIA) guidelines on document retention will often apply to engineers as well. The AIA recommends permanent retention of your contract for the job, certificate of substantial completion, and the certificate of occupancy. For a shorter period, the AIA recommends retention of proposals, manufacturer’s data, construction photos, project correspondence, as-built drawings, construction documents, and project accounting. The AIA identifies design drawings as documents to be discarded; however, in a dispute over the blueprints you developed, you will want to produce your own accurate set of as-built drawings.4
The final question to consider is how long documents should be retained if they are not destined for your permanent archives. The AIA advises that you should retain documents for the length of the statute of limitations or statute of repose for any legal action against you as a design professional. The distinction is that statutes of limitation bar a lawsuit if not brought within a certain time period, but the time allowed is subject to change. By contrast, the statute of repose sets a time limit for filing suit that is strictly enforced without exception. Statutes of repose concerning claims against engineers vary greatly in each state, and you must obtain legal counsel to ensure that your document retention period provides you with adequate protection in every state in which you are licensed and practicing.
The statute of repose sets a time limit for filing suit that is strictly enforced without exception.
Whether it is the statute of repose or the statute of limitation that will bar recovery is often a complex question. For example, under Ohio law an engineering consulting firm negligently filed as-built drawings that did not reflect the change in laying a high voltage cable with the state architect, but the filing did not trigger the ten-year statute of repose. Instead, the two-year statute of limitations was triggered under the theory of “delayed damage” when a plumber consulted the erroneous drawings and struck the cable during excavation, resulting in serious injury.5 Therefore, a worthwhile document retention policy may provide for the outer time limit for filing suit. It is also essential that your attorney advises you when the statute of repose starts to run. In California, a lawsuit against engineers and contractors for grading a lot was time-barred because the ten-year statute of repose began to run when the engineers filed their notice of completion, and it was irrelevant that the remainder of the work on the development by other subcontractors concluded at a later date.6
It is time well-spent to draft document retention practices upon advice of counsel to determine which documents you should retain and for how long. In the event that you are suddenly forced to defend your work, you will be able to provide records to your attorney without delay during the critical initial phase of litigation when your best defense ideally takes shape.
1All 30 recommendations by the NIST and comments on behalf of ASCE/SEI can be found here: http://www.asce.org/Government-Relations/Testimony-and-Correspondence/ October-26,-2005—James-R–Harris,-PhD-,-P-E-,-M-ASCE-Testimony—Investigation-of-the- World-Trade-Center-Collapse/
2Miner Dederick Constr., LLP v. Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451 (Tex. App. 2013).
3Martin v. Keeley & Sons, Inc., 979 N.E.2d 22 (Ill. 2012).
4The full list of the AIA guidelines for document retention is available here: http://www.aia. org/akr/Resources/Documents/AIAB085900
5Elliott v. Fosdick & Hilmer, Inc., 460 N.E.2d 257 (Ohio Ct. App. 1983).
6Nelson v. Gorian & Associates, Inc., 71 Cal. Rptr. 2d 345 (Cal. Ct. App.. 1998).
