Technology has changed the way we communicate and the way we think about communicating. Cell phones, have become not just an addition but an appendage. No one, it seems, leaves their home (or office) without one. And does anyone even remember a time when e-mail didn’t exist, or when we didn’t devote a large (and increasing) amount of time to reading and responding to those messages?
Community associations are as hooked on this communication drug as anyone. Board members communicate via e-mail regularly with each other and with association managers; they share information, ask and answer questions, and discuss past or future board meetings, all through the transmission of e-mail messages.
But most innovations create new problems as well as new benefits, and e-mail is no exception. For community associations, these problems take the form of potential legal pitfalls that boards must recognize and avoid. One of the questions to consider is:
- Are e-mail communications subject to “discovery” during legal proceedings? That is, if the association is sued, can the plaintiff insist on seeing all e-mail messages in which issues related to the litigation are discussed?
A Discovery Channel
The latter issue is potentially the most problematic for community associations, and the short answer to the question – “Are e-mails subject to discovery?” — is an unequivocal yes. E-mail messages are no different from letters you might write or any other written document you might produce. Don’t assume that because the communications are “private” they will be treated as confidential. In fact, you should assume the opposite: Anything you say in an e-mail could end up in the hands of someone on the other side of a legal dispute, who could and would, if possible, use those communications against you.
An attorney in another law firm was defending a community association in a suit filed by an owner whose unit had suffered water damage for which, the owner claimed, the association was responsible. In reviewing the board’s e-mail discussions of the issue, the attorney came across a message in which the board president had said: “This guy is a jerk! I don’t care if water is flowing through his unit like a river, we’re not going to do a damned thing about it!”
Time to wave the white flag. Confronted with a statement as damning as that, you don’t even think about trying to defend the liability claim – you have no defense. You just ask the owner, “How much do you want?” and write the check.
There are limits on a plaintiff’s ability to “discover” a board’s communications. E-mail communications to and from the association’s attorney are protected by attorney-client privilege and are not subject to discovery in a law suit. But this protection is not all-encompassing. A message from the attorney to one or more board members offering advice or outlining legal strategies would clearly be privileged. But e-mail messages in which board members discuss the attorney’s advice among themselves may be at risk. You could argue that these communications are protected, but courts don’t always recognize the nuances of an attorney’s relationship with a community association client. Some judges might conclude that a group e-mail discussion of the attorney’s communication, even if that group consists solely of board members, destroys the confidentiality of the exchange. So board members are best advised to treat their discussions of information provided by their attorney as if they might be subject to discovery, and to avoid having those discussions via e-mail.
Sending a copy of all e-mail communications to the association’s attorney as a means of shielding them from discovery would be clever, but probably ineffective. The attorney-client privilege, stretched that thin, will ultimately fail. Courts will almost certainly recognize that ploy for what it is —an effort to cram all board communications under the attorney-client umbrella. Sending a copy of a communication to an attorney won’t ensure its confidentiality; only direct communications between attorneys and their association clients can be reasonably assured of protection.
Search and Destroy
Communications experts recommend that corporations establish a policy requiring the periodic deletion of old e-mail messages, and that’s a good idea for community associations, too. However, this policy will not allow you to destroy communications related to current or pending litigation or to matters that you have reason to believe might lead to litigation in the future. The legal term for this is “spoliation” – the destruction of evidence — and a board or board member found to have violated that rule would face stiff court sanctions.
So, for example, if an owner is injured in a slip and fall accident, even if that owner has not sued the association (yet), board members could not delete e-mail messages pre-dating the accident in which someone noted that the sidewalks were not being cleared properly and posed a potential hazard. If you have any inkling at all that legal action is possible, you are prohibited absolutely from destroying evidence of any kind related to it, even if the destruction is consistent with an established records management policy.
There is no question that e-mail is a useful and efficient communications tool, and there is no reason board members can’t use it, but they should use it selectively and only for the most benign discussions. If you have any concerns at all about the potential for litigation, remember: You can’t be required to produce an e-mail you haven’t written. Even in non-controversial discussions, think before you write and be careful what you say. Ill-considered or inappropriate e-mail messages can be embarrassing, reflecting negatively on individual board members or on the board as a whole. The best advice for board members: Don’t say anything in an e-mail message that you wouldn’t want to have read out loud in the middle of the parking lot, see printed in the local newspaper, or hear reported on the 6:00 news.