Historically, when a lawsuit is filed, each party is entitled to “discover” evidence held by the other side. This “discovery” process typically involves producing copies of records and other documents possessed by each side to the dispute. In the case of an association, this would include among other things, correspondence to and from the board and its owners as well as between board members, financial records, board and owner meeting minutes, enforcement records, reserve studies and collections information. In today’s world, much of this correspondence and records are in the form of emails, texts, databases and other electronically stored information, commonly called “ESI.”
Our firm philosophy has long been “Communication not Litigation.” This philosophy is based on the belief that disputes are best resolved in a voluntary and reasonable manner rather than through the time, expense and aggravation of a lawsuit. Recent developments in the law, however, may require Association boards to pay much more attention to how they “communicate” in the event they are compelled to “litigate.”
Not surprisingly, lawyers have been very quick to seize upon the existence of ESI and have begun to diligently seek it out both prior to and after the filing of a lawsuit. Once an association’s board becomes aware that the Association has been or is likely to become involved in litigation, it has a legal obligation to preserve all evidence, including ESI. We have received a number of letters from lawyers specifically requiring our association clients that may become involved in litigation to preserve any and all ESI under the threat of being sanctioned by the courts.
While none of this may seem to be problematic at first, it can become a great concern for boards who routinely conduct business by email from their home computers, work computers or personal email accounts, as each of these computers and email accounts are subject to discovery motions and subpoenas. This will invariably provide access to information, either personal or otherwise, that a board member assumed was private or confidential but is now being subject to the scrutiny of lawyers and courts. Computer technicians are now able to completely “clone” or duplicate all information on individual computers and computer systems, including attempts to delete or change information. As a result, board members should avoid using personal email accounts to conduct Association business and limit the content and subject matter of email communications. (Ask yourself if you would feel comfortable having a particular email read in front of a jury.)
The most important thing to remember is that no matter how many times you press the “delete” button on your computer, nothing ever really goes away and may be able to be retrieved by some fairly sophisticated software and some fairly persistent lawyer.