Dance Like Nobody is Watching, But Email Like Everyone is Watching
You’ve probably all heard the saying, “dance like nobody is watching.” It is likely hung on a friend’s wall right now, just feet away from a Live, Laugh, Love sign. And, while I wholeheartedly support that sentiment, I offer some practical advice: email like everyone is watching.
Board members of an association often email with vendors, other board members, unit owners, and attorneys. These emails run the gamut from dealing with a water leak, to a delinquent owner, to inviting a fellow board member over for a drink. Most of those emails are intended to be read only be the people on the email. The audience certainly dictates not only what is said, but how it is said. So what happens when those emails are produced in discovery, sometimes months or even years after they are written? Well, there can be some problematic results.
In both construction defect litigation and insurance litigation for associations, opposing parties often seek broad discovery. One such request is for “all emails between or among board members relating to the condominium.” Fortunately, most emails that include the Association’s attorney will be privileged. But emails among or between board members may not be.
There are two problems I’ve seen arising out of this situation. One is that context is often difficult to recreate after the passage of time. So, emails regarding a “leak” in the building might seem bigger than the $10 repair to fix it. Without some sort of explanation or closure, insurers or other defendants might suggest that the association had knowledge of a problem outside of the statute of limitations.
Another problem may simply be embarrassing emails. I’ve seen board members speak poorly or make jokes about a unit owner or employee. These emails may be used by the other side to paint an unfair picture of a board member. Or, it simply may be embarrassing for those emails to come to light.
My advice is to write emails with the assumption that someday the email will be read in open court. While I can’t help any embarrassment you might suffer if you get caught dancing alone, hopefully I can help avoid some unwanted embarrassment at the hands of uncensored emails.