The management and administration of a community association is the operation of a business. Email is likely an essential component of conducting association business. Email is quick and creates a record of the issues discussed by the Directors and the decisions they make. While many Directors and managers may be aware of the right to protect email deliberations through the use of Section 487 of the Nonprofit Corporation Act, they are often equally unaware that these communications will not be protected from discovery requests in the event of a lawsuit involving the association.
Discovery is the process of gathering information from other parties to support or defend against a civil lawsuit. The Michigan Court Rules provide for broad and open discovery of documents and other evidence in civil litigation. In order for information to be discoverable, it must be relevant and nonprivileged. There is no privilege that protects Director-to-Director communications. If a Director’s emails involving association business are relevant to the pending case, or will lead to relevant information, the emails will have to be disclosed.
The disclosure of Director emails could lead to unflattering or embarrassing situations, which may be unrelated to the litigation. If a Director is using a personal email account for association business, and has not been diligent about sequestering association communications, all of the Director’s personal affairs are subject to being revealed through discovery. Jokes with friend, bills, and information about children and spouses may all be revealed as the entire personal account is searched for emails related to the legal dispute.
Using a business email account could lead to more serious consequences for a Director. Rather than subpoena a Director for her emails about Association business, an opposing attorney could directly subpoena the Director’s employer for the email account. Now it is the employer that has to incur the cost and expense of reviewing and producing emails. A Director whose employer prohibits the use of business email for personal matters might face disciplinary action. Additionally, courts have held that where there is no expectation of privacy due to corporate policy, emails that might otherwise be privileged lose that protection. Business email accounts may be subject to content restrictions or review by the company, thus eliminating any expectation of privacy. Even an email from the association’s attorney that would otherwise be protected by the attorney-client privilege may have to be disclosed.
Some directors may attempt to shield the disclosure of emails by simply copying the association’s attorney on all email correspondence. In addition to the potential cost of copying an attorney on every Board email, this practice will not place all emails under the attorney-client privilege protection. The scope of the attorney-client privilege in Michigan is narrow. The privilege attaches only to confidential communications by the client and their advisor that are made for the purpose of obtaining legal advice. A Board of Directors that copies the association attorney on every email but never seeks the attorney’s advice will not have protected its communications from discovery.
While there is no way to protect non-privileged Director emails from discovery, there are steps the Board can take to protect against the disclosure of Directors’ personal emails and to cut down on the cost of an attorney having to review and redact confidential information from emails.
1. Do not use a work or existing personal email for association communications.Consider having the Association set up an email service specifically for Directors. The association is a business and email is an essential business tool. The cost of this practice is outweighed by the potential of having to produce all private or work emails in the event of litigation.
2. Adopt an email policy. If the association provides Directors with an email account, require that the Directors use this account for all association related business. If the association will not be providing Directors with email accounts, require that Directors set up a separate account for all Board emails. There are numerous free email providers such as Gmail and Yahoo! Mail. At a minimum, have Directors store association emails in a separate folder in their account rather than leaving them to pile up in the Inbox. Create a policy for archiving Board emails.
3. Be careful what you put into print. Evan an email with no negative legal implications could be embarrassing if written in the heat of anger and later disclosed. Before hitting “send” on that blistering email response to a fellow Director, consider whether or not you would be comfortable with a jury reading its contents. Use email to transmit information but not to have a dialogue.
4. Send single subject emails. An email that starts out about one topic may over divert into numerous topics. If an email chain involves multiple units or co-owners, it will need to be redacted prior to production in litigation in order to ensure that confidential information is included. Imagine the cost of the association’s attorney sitting for hours and reading emails in order to redact privileged information.
Email is a tool that is widely used for the efficient and orderly operation of community associations. It is important that community associations, like their for-profit cousins, adopt policies that control the use email for association business, recognizing that, one day, those emails might be disclosed during litigation.
* Benjamin J. Henry is a Michigan Condominium Attorney and an associate at Makower Abbate Guerra Wegner Vollmer PLLC. Mr. Henry focuses his practice primarily in the areas of Michigan Condominium Association and Michigan Homeowner Association law. Mr. Henry is a member of the Real Estate and Litigation sections of the State Bar of Michigan.