I recently had an architect client ask me," How long do you recommend keeping documents, and which ones are critical?"  These questions are both good ones and cans of worms. (It is also an ongoing and thorny issue with other professions, including law.) 

A Need to Keep Records?  Like most good questions/cans of worms, I am not sure if there is a single hard and fast answer.  But the threshold question is - should you keep records at all?

While seemingly a silly query - "of course one should" - there are a number of people who don't, and at least some attorneys who agree with this.  I think one should.  If an issue comes up in five years and you have no records, you are at a real disadvantage.

Statutes.  There also appears to be some statutory authority to do so.  Business and Professions Code Section 5536.3 states plans and drawings must be made readily available to a homeowner and/or insurance company in the event of a natural disaster.  However, it does not address how long one must keep these records.  I think a reasonable interpretation of this law is that while it does not create an independent requirement to keep records it certainly encourages it.

One statue that does give guidance is California Civil Code Section 337.15.  This states that the statute of limitations for bringing an action for latent construction defects is ten years from substantial completion.  Thus, if one has legal exposure for 10 years it makes infinite sense to keep records for at least that long.

Just to be on the safe side, I advise my construction clients to retain records for 11 or 12 years.  Sometimes lawsuits are filed on the very last possible day and then not actually served on the defendants until later.  Further, often other construction professionals are later brought into these defects lawsuits by a cross-complaint by the original defendant.  This also can take some time to play out. 

Critical Documents.  So what do you keep?  Construction documents encompass a broad range of materials, including building plans, estimates, contracts, subcontracts, supply orders, purchase orders, change orders, photos, et seq. 

However, critical documents are in the eye of the beholder.  A litigation attorney would probably say keep everything.  I think initially whatever you have in the file at the end of the job is what you keep.  As time goes by and you need to free up the storage space, it would be reasonable to do a bit of prudent weeding.

Emails/Electronic Files.  Rapidly replacing the old fashioned letter, emails can be a pain because there is often so many of them.  Stored on a disk with the file might be the easiest way to handle this aspect of keeping documents.

Although I am not a litigator, I am pretty sure electronic files suffice as opposed to keeping the hard copies.  Indeed, one can now do most of the litigation filing of documents with courts electronically.

When to Clean Out?  I think if one decides to keep paperwork for the suggested 11 or 12 years, you could safely toss most of it at the 11 or 12 year mark.  You have exercised prudent and reasonable care.  But keep the client thank yous and other mash notes to remind you in your dotage of jobs well done.  The older we get the better we were.

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Previous Articles.  For my previous articles, please visit SFBA NARI's website and click on the link "News and Articles."  They are also available on my website under "Articles."  As always, my discussions are summary in nature and intended to simply give the reader a heads up on various topics and issues.   

Bryant H. Byrnes, Esq. practices construction law in the San Francisco Bay Area and is counsel to the SFBA NARI Board of Directors.  Questions?  His website is www.bryantbyrnes.com.  Feel free to contact Bryant by email at bhbatty@pacbell.net.