What to Consider When Keeping Records From Construction Projects

After a construction is complete, a party can retain project documents. How long it takes can surprise you, but maybe not as long as you think.

Statues of Limitations

Under Missouri law, if you are planning to file a suit, it must be within five years from the time of the party brought up the action or should have known of the act in contract. The applicable state’s statute of limitations creates a deadline for filing an action.

Statues of Repose

State statutes of repose, including those in Missouri and Illinois, create a time limit for the commencement of litigation or mandatory arbitration at 10 years from the date of the act comprising a breach of contract or negligence. This is to protect architects, engineers and contractors from unending liability to owners.

In Missouri, if the owner of the constructed building discovers a latent defect in the design or construction days before the 10-year period expires and fails to file an action on or before that date, the action is barred by the statute of repose.

The Illinois statute of repose, the owner would have the full time, according to the Illinois statute of limitations, which is four years, to bring an action, from the date of discovery of the latent defect. In that case, in Illinois, the 10-year statute of repose could be, now, 14 years with the Illinois statute of limitations using the same scenario.

How Long Should Companies Keep Records?

Storing and maintaining big and small projects and their documents can be a costly for a company of any size and can use lots of paper and electronic copies. But because of the possible discovery of any defects in the design or the construction work, all involved in a construction project, including the owner, should keep the project documents for a predetermined period of years after the completion of a project.



Under state and federal law, there are certain types of documents created and kept in the normal course of business that can qualify under the business records exception to the hearsay rule, also known as the Business Entry Rule. The hearsay rule is to prevent secondhand statements from being used in trial because of their potential unreliability. Therefore, keeping those types of documents in the course of business may allow to be used in court if it is to help lay the foundation of reliability. This business records exception can be very important, especially if many years have passed and the person or people who created a business record either cannot be later found to testify or has died.



It is important to keep and maintain project records such as:

1. Drawings and specifications
2. Design/engineering calculations
3. project diaries
4. Reports
5. Requests for information (RFI) and responses
6. Meeting notes and minutes
7. Contracts and purchase orders
8. Change orders
9. All versions of shop drawings and other submittals
10. Construction progress photographs
11. Site progress/field reports
12. Certificates of insurance
13. Emails and other correspondence



Any of these documents may hold some key information that may affect the outcome of a dispute about the allegations of a defective design and/or construction. Even if the witness who created a document is available to testify, these types of project records are more likely to be persuasive and refresh recollections of important events that may have taken place years before. With these types of suits, evidence of a directive or an approved alternative (or not) to the specified material, equipment or construction detail can be dispositive proof supporting one of the parties in a trial or arbitration.



The following recommendations apply to only construction project documents, not to other types of company records.

State Projects

Missouri projects: If Missouri is the governing law, project records should be maintained and preserved for a minimum of 11 years after the project completion date, (one year beyond the statute of repose date of 10 years).

Illinois projects: For projects governed by Illinois law, project records should be maintained and preserved a minimum of 15 years (one year beyond the four-year statute of limitations period plus the 10-year statute of repose date).

If the party is aware at any time prior to the destruction of any project documents of defective design and/or construction issues, the project records must be kept until the issues are resolved. A “litigation hold” should be issued within the company advising everyone to not destroy or discard any project-related documents.

Public Projects Under Law and Contract Requirements

For all projects, private or public, check the contract to see whether record retention is addressed and mandated. In both federal contracts and federally assisted contracts, such a provision is commonly included. For example, by incorporating a federally assisted construction contract that contains a requirement that certain kinds of records shall be retained by the contractor for a minimum of five years.

Company Retention Protocol

All design and engineering firms and construction companies are recommended develop and follow a written document retention protocol for all project documents. The company’s protocol will state that project documents can be destroyed after a stated period of time following final completion unless there is pending or threatened litigation or arbitration.



If there are actions that could lead to litigation or arbitration or if such a dispute resolution proceeding has been initiated, a designated person within the company should issue a written “litigation hold” to all employees and officers of the company in order to prevent the destruction of any project documents. Failing to keep such records when a company is or should be aware of a pending dispute may lead to the imposition of sanctions against the company by a court or arbitrator for the company’s illegal spoliation of evidence. It can be serious and impair a company’s ability to protect its interests in an action.



However, if a company has followed a protocol to keep documents for the appropriate amount of time and destroys project documents in accordance with its protocol while not aware of any dispute or claim against the company that could lead to litigation or arbitration, the company should not face punishments for destroying evidence if such an action is later commenced by the owner. If the document destruction takes place after the statute of repose period (or the combined statute of repose/statute of limitations period) has passed, there should be no issue of spoliation of evidence because the action would be time barred as a matter of law.

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