Written Document Retention Plans

WRITTEN DOCUMENT RETENTION PLANS

By: Larry R. Leiby, Esq. and Robert S. Tanner, Esq.

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the exams for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com. For more information, please visit www.mkpalaw.com.

Do you have a written document retention plan? Do you know whether you are required to retain documents and, if you are, do you know which documents you must retain, in what form you must retain them, or how long you must retain them?

A written document retention plan will help your company in at least two ways. First, it will help ensure that you understand your legal obligations in regards to the retention of documents. Second, it will help ensure that you actually comply with those legal obligations.

A legal obligation to retain documents may arise from different sources. Statutes exist that impose on some affirmative legal obligations to retain documents. For example, Florida Statutes, section 489.124 requires, "All contractors who are registered or certified pursuant to this chapter [to] maintain complete financial and business records for the immediately preceding 3 years." That statute lists types of documents that registered or certified contractors must retain, including "minutes of corporate meetings, business contacts, telephone records, insurance policies, letters of complaint . . . and all other business and financial records the contractor maintains in the regular course of business."

Legal obligations to retain documents also arise in the litigation context. Parties to a lawsuit clearly have a duty to retain documents (and other evidence) when served with a discovery request or in the instance of a court order. Some courts have found that litigants are under a duty to preserve evidence that the litigant knows or reasonably should know is relevant to the case. Companies that have notice of potential litigation may also have an obligation to retain documents. Failure to comply with these obligations can result in court-imposed sanctions. Sanctions may include the judge allowing the jury to draw an "adverse inference" (an unfavorable conclusion) about the litigant's liability as a result of the missing documents or even prohibiting the litigant from defending any aspect of the case. Obviously, such sanctions can be quite expensive.

In today's world, a company's documents are found not only in the file cabinet but in its employee's desktop computers, on the company's website, in the "cloud" (on the computers of third parties housing documents for remote access), and even its employee's smartphones. A written document retention policy that accounts for your documents and identifies who is responsible for maintaining the documents, who is responsible for destroying documents, and the defines the circumstances under which documents are destroyed will help with your statutory compliance efforts and will help ensure that you avoid problems in court should you become involved in litigation. The attorneys at Malka & Kravitz, P.A. have experience with these issues and would be happy to help you prepare your own written document retention plan, and the expertise to assist in all of your construction law needs.