Dance like no one is watching; email like it may one day be read aloud in a deposition. – Author Unknown
As well-known especially by those with teenagers, email has taken the place of ordinary telephone conversations and in-person communications. Unlike most telephone conversations and in-person communications, however, email communications are not ephemera. Rather, they live on in back-up tapes or disks maintained by your employer, in records maintained by your email service provider, on your computer’s hard drive, and/or in your phones – smart and otherwise. Also unlike verbal communications, email typically fails to convey tone, sarcasm and other nuances that can altogether change the meaning of the intended communication – and can create problems in litigation accordingly.
For some time – and increasingly – attorneys look to email for the juicy tidbits that the often sparse and sterile Board-meeting minutes or other business records of your Association do not convey. To avoid losing the right to rely on your Declaration’s exculpation provision, or creating circumstances that could give rise to an award of punitive damages that insurance policies typically do not indemnify over, Board members should restrict their Association-related communications to verbal exchanges. Where appropriate – specifically, when evaluating matters involving litigation, the hiring or firing of employees, rule violations and a unit-owner’s unpaid assessments – such conversations should take place in closed, executive session of your Board of Directors. When addressing other Board business, confine your communications to official and open Board meetings – a requirement imposed by the case of Palm v. 2800 Lake Shore Drive Condo. Ass’n, 2014 IL App (1st) 111290 (1st Dist. 2014).
If Board members must nonetheless email for any Association-related reason, it is important that they avoid sending email communications to the Association attorney from their work email address. Often, employee handbooks underscore that the employee enjoys no expectation of privacy. Such a provision could undermine application of the attorney-client privilege, as courts have found in New York (although not yet in Illinois). Equally dangerous, an opposing party could subpoena your employer to mine for potentially damaging email, perhaps necessitating the review of backup tapes at tremendous and unnecessary cost to your employer. To avoid such risks, consider creating email accounts solely for Association- or Board-related communications, and/or otherwise segregate all email related to your Association into a folder created expressly for that purpose.
Remember, too, that – if you are communicating Association business via email, even if only an agenda or notice – the email may constitute a business record of the Association. Thus, it is important to preserve such records both to retain corporate knowledge for the benefit of future boards of directors, as well to safeguard important information in the event of future litigation.
For questions on email records, the attorney-client privilege, and other issues involved in Association record-keeping, please feel free to contact Kovitz Shifrin Nesbit at 855-537-0550 or visit our website at www.ksnlaw.com.