What You Type May Be Used Against You
Before sending any email, especially one associated with your role as a Board Member, answer this question: How would you feel if this email were projected onto a large screen in open court in the presence of a jury? I suspect if more people asked themselves this simple question, the number of emails sent per day would decrease dramatically.
With the proliferation of email as a preferred form of communication, Board Members are in a unique situation. They become members of a Board of Trustees and their personal lives immediately become intermingled with the business of the Association. They become fiduciaries to their neighbors and friends, all the while maintaining personal relationships with those people. Often times, the line is blurred between friendship and Association business and as a result communications that might not be professional in nature, or in line with their duties as Board Members, are sent to other Board Members or other persons in the Community. Under current discovery rules, many, if not all, of those emails must be produced if litigation arises. In our experience, there are numerous instances where Board Members have made harmful or derogatory statements about each other, the Developer, and/or other unit owners. Those emails, while not directly harmful to the Association’s position, are likely to harm the credibility of the author Board Member and weaken the Association’s overall position. An adversary may look to show a personal vendetta against their client, be it a fellow unit owner or maybe the Developer. These emails give them the opportunity and evidence to prove that theory to the jury. This presents a significant problem for those Board Members during their depositions and at trial should the litigation progress to that stage.
One way to prevent this from occurring is to completely segregate personal emails from those related to the Association. Each Board Member could set up a free email account with a service such as Yahoo, Gmail or AOL. Or the Association could develop its own website, which would provide each Board Member with an email address that is individualized to the Association. That new account would be used solely for Association business and communications between Board Members related to Association issues. Just like separate bank accounts prevent the commingling of funds, a new Board Member email account would prevent the blurring of the line between regular citizen and unit owner and a member of Board of Trustees. It would also tend to save the Association money during litigation, as personal and irrelevant emails would be completely separate, and therefore, would not have to be sorted, copied, produced and/or reviewed by counsel for the Association. The key would be a zero tolerance policy. Any email related to Association business or related to the persons role as a member of the Board would have to come from the dedicated Association account. Otherwise, the personal account may be fair game for discovery as well.
