Imagine this scenario: a person volunteers their time, and spends countless hours working for the betterment of their community. Many of these hours are late at night or on weekends. They and their fellow Board members exchange countless emails at all hours of the day. The emails are often sent from their work or personal computers or phones. One of the many decisions made by the Board is challenged by a member of the Association who files a lawsuit. In seeking to examine what discussion the Board members had with management or other Board members on the issue, the member’s attorney requests that the Association produce all correspondence related to the issue, and issues a subpoena to each Director requesting they produce all Association related emails.
The Director has been using their personal email for Board business, or worse, their work email, in which case the subpoena went to their employer, who is now asking why the Board member was using their work email for personal matters. The employer is concerned that complying with the subpoena will expose private, trade secret information to outsiders, and they are not happy, to say the least. Not to mention the fact that use of a work email address for personal communication, such as Board business, will often violate the employer’s email policy and expose the Board member to potential discipline from the employer. The employer is also faced with having to decide between spending thousands of dollars to have the employer’s attorneys review the emails to identify the relevant emails to produce and redact any information not relevant to the subpoena, or to file a protective order. If the Director has been using a personal email address, they will face a similar dilemma. How do they produce only the Board related emails without all their personal emails being revealed to others? The jokes exchanged between friends, bills, financial related emails, stories about children and spouses, all will be produced to the other side unless someone sorts through the emails to identify the ones that are relevant to the subject matter of the suit.
Associations are required to make certain corporate records available for inspection by owners. Several statutes specify the records to be maintained, and the conditions upon which the records must be available for inspection and copying by Owners in the Association. I am not taking a position on whether such emails would qualify as Association or corporate records subject to production by Owner request. Rather, it is litigation, where the ability to request documents is much broader, and the stakes higher, that Directors and Managers should consider in evaluating the risks of using personal or work emails for Board business.
What can a Director do to avoid the situation described above? What can a manager do to guide a Board before this all comes to pass? The first thing to do is rather easy. If you are a Director, do not use a work or existing personal email address for any communication with either the Manager or other Board members. There are other, better, alternatives. These include the free email services available from many providers. Sign up for an email address with Google, Yahoo, Hotmail or others, and use that address for Board business only. That will protect a Director’s private emails from disclosure should they ever have to turn over Board related emails to a third party. These services all offer the ability to sync or download email to a Smartphone and provide easy web access. Any burden that might be caused by having to send and receive emails from a separate email address used exclusively for Board business will more than be offset by the fact that should a Director ever have to produce Board related emails, they will already be separated from their work and personal emails.
Second, the Board and Management should consider an email policy addressing various factors, including whether Board members should be allowed to use personal email addresses for Board business, or whether Board members will be required to set up a separate email address for Board communications. The Board should keep in mind that email discussions between Board members could potentially be construed as a “meeting”. In places such as California, which requires that Board meetings be noticed and open to the membership, the Board should be careful to save such discussion for a properly noticed Board meeting which the members can attend (with some exception for items which can be discussed in closed or executive session). The Board should also consider what type of archival efforts it will make to keep emails for any length of time.
Lastly, the Board should consider whether it will set up and maintain an email service for all Board members. After all, Associations are essentially a business, and an email address is now a basic business tool. Providing email service to all Directors will provide the Association the benefit of having control over retention and archival of emails, and make it easier to respond to any legal requests for Board communications. The costs of providing such a service to Board members should be trivial compared to the cost associated with having to gather and identify the Board related emails from personal email accounts of Board members, or their employers. In order to increase adoption of such an email service, Boards should require that any service provide the ability to sync with all modern smartphones, and provide web access.
Taking these basic steps will go a long way to avoiding having the work and personal emails of a Director disclosed to anyone, even if only the Association’s lawyer. All Boards should discuss these issues with their counsel, and work to develop a policy that meets their needs. With these easy steps taken, a Board can go a long way to saving costs in litigation, and better control Board communications.