The documents retained by parties to a dispute can both provide the tools for a successful defense and constitute the means by which a claim is prosecuted, depending on what has been kept “in the file”. Therefore, developing a good file management and records retention policy is one of the most important tasks for a modern business. Yet it is in this area that we find so many problems arise.
For example, a well written field report noting that the design professional observed a problem condition and reported it to the contractor and the owner may constitute the key piece of evidence on which the design professional can rely to avoid liability in a suit over failure of that condition. On the other hand, missing minutes from weekly meetings, gaps in numbered field reports, incomplete documents or offhand comments in a design professional’s reports may be used by a clever attorney representing an owner or contractor to try and show a lack of attention to detail or a failure of the chain of command within a design professional firm creating liability for a condition which should not have been the responsibility of a design professional.
While there is no easy answer or a “one-size fits all” solution to file management and document retention, the following are some general points design professionals ought to consider in creating a document retention policy.
Consistency
The most important goal of a document retention policy should be consistency. If one design professional on a project is doing weekly reports, all design professionals should do weekly reports. Otherwise, when it comes to a dispute, you will be asked why weekly reports were not done on this particular project, why this project wasn’t important enough for weekly reports as in other projects. If a checklist is employed as part of a quality control program, the checklist must be completed for each step of the project. Again, missing documents will be used to show a lack of attention to detail. As a general rule, a design professional should keep records documenting the good work done on a project, pursuant to a retention policy that requires consistency.
E-mail
One of the biggest goldmines for litigation is the e-mail. E-mails are often written with the lack of forethought of the spoken word but with the permanence of a letter. Basically, if you wouldn’t want your client reading it, don’t put it in an e-mail, because in litigation that is exactly what will happen – all of your internal e-mail will be produced for everyone to see. The private nickname for the difficult client, the negative comments about a particular contractor or owner, or, most dangerously, the negative comment about a co-worker or a consultant, can be taken out of context and used in litigation to great effect.
What Goes in the File
Again, as a general rule, the design professional should keep documents that show the good work done on a project. Field reports, design review and correspondence with the owner would of course be included in this list. However, other documents may or may not be part of your document retention policy. For example, records of telephone conversations, timesheets, or personal notes of individuals on your design team. A well crafted records retention policy will include both criteria for what should be included in a file as well as a policy for what is not included, and how long records are retained before they are destroyed or purged. For more information on how long particular records should be retained, contact your legal counsel.
Electronic Data and Individual Files
As noted, e-mail has become a particularly dangerous area of information in litigation. However, electronic data encompasses a broader range of information that just the e-mail retained by a particular individual. IT departments routinely keep archival tapes as back-up in the event of a server crash. In some cases, these archival tapes are kept for years, and can be used to recreate e-mail and other electronic documents that the drafter thought had long been deleted. Moreover, individual notebooks or field notes kept by individual members of the design team often resurface years after a project. When designing a records retention policy, due consideration should be given to all forms of electronic data and personal files. Again, contact your legal counsel for more information on the length particular records should be retained.
For example, a well written field report noting that the design professional observed a problem condition and reported it to the contractor and the owner may constitute the key piece of evidence on which the design professional can rely to avoid liability in a suit over failure of that condition. On the other hand, missing minutes from weekly meetings, gaps in numbered field reports, incomplete documents or offhand comments in a design professional’s reports may be used by a clever attorney representing an owner or contractor to try and show a lack of attention to detail or a failure of the chain of command within a design professional firm creating liability for a condition which should not have been the responsibility of a design professional.
While there is no easy answer or a “one-size fits all” solution to file management and document retention, the following are some general points design professionals ought to consider in creating a document retention policy.
Consistency
The most important goal of a document retention policy should be consistency. If one design professional on a project is doing weekly reports, all design professionals should do weekly reports. Otherwise, when it comes to a dispute, you will be asked why weekly reports were not done on this particular project, why this project wasn’t important enough for weekly reports as in other projects. If a checklist is employed as part of a quality control program, the checklist must be completed for each step of the project. Again, missing documents will be used to show a lack of attention to detail. As a general rule, a design professional should keep records documenting the good work done on a project, pursuant to a retention policy that requires consistency.
One of the biggest goldmines for litigation is the e-mail. E-mails are often written with the lack of forethought of the spoken word but with the permanence of a letter. Basically, if you wouldn’t want your client reading it, don’t put it in an e-mail, because in litigation that is exactly what will happen – all of your internal e-mail will be produced for everyone to see. The private nickname for the difficult client, the negative comments about a particular contractor or owner, or, most dangerously, the negative comment about a co-worker or a consultant, can be taken out of context and used in litigation to great effect.
What Goes in the File
Again, as a general rule, the design professional should keep documents that show the good work done on a project. Field reports, design review and correspondence with the owner would of course be included in this list. However, other documents may or may not be part of your document retention policy. For example, records of telephone conversations, timesheets, or personal notes of individuals on your design team. A well crafted records retention policy will include both criteria for what should be included in a file as well as a policy for what is not included, and how long records are retained before they are destroyed or purged. For more information on how long particular records should be retained, contact your legal counsel.
Electronic Data and Individual Files
As noted, e-mail has become a particularly dangerous area of information in litigation. However, electronic data encompasses a broader range of information that just the e-mail retained by a particular individual. IT departments routinely keep archival tapes as back-up in the event of a server crash. In some cases, these archival tapes are kept for years, and can be used to recreate e-mail and other electronic documents that the drafter thought had long been deleted. Moreover, individual notebooks or field notes kept by individual members of the design team often resurface years after a project. When designing a records retention policy, due consideration should be given to all forms of electronic data and personal files. Again, contact your legal counsel for more information on the length particular records should be retained.
