It's Court Day Do You Know Where Your Hard Drive Is?

It's Court Day

There’s no question that the Internet has revolutionized the way the world communicates. E-mail has become such an integral part of our lives and work, it’s hard to imagine how anybody got anything done without it.

Fast and convenient as it is, however, e-mail has a downside: studies have shown that people tend to be more informal and off-the-cuff in e-mail communications than in conventional letters or even on the phone. In the co-op/condo community, this may encourage a kinder, gentler brand of interactive communication, but it can also lead to liability issues for board members–particularly in cases involving discrimination suits.

Board members may not be aware that e-mail communications are admissible as evidence in court proceedings; they serve as permanent records every bit as important as meeting minutes and regular pen-and-ink correspondence.

The issue of e-mail can be so vexing that the Council of New York Cooperatives and Condominiums (CNYC) recently held a seminar attended by board members, managers, unit owners and shareholders in which the ramifications of conducting business by e-mail was discussed.

Orsid Realty Corp. chief operating officer and managing agent, Thomas A Pasquazi II, says that among board members, e-mail should be used to resolve routine issues such as building repair, grounds upkeep and improvements to your building through interior decorating. For example, Pasquazi recommends the legitimacy of discussing a tear in a canopy or a lobby renovation and what should be done about it via e-mail. These things are safe subjects with which to deal with interactively via e-mail because they do not determine a person’s future within the co-op, he says.

"E-mail communications facilitates that we use common sense in discussing whatever could be litigious or dangerous," Pasquazi says.

Mary Ann Rothman, CNYC president, agrees that e-mail correspondence should be limited to board meeting notices and other non-controversial business. However, with technology taking over communication, board members use e-mail to shoot off ideas amongst themselves while they review applicants. This may be the computer-savvy way of doing business as usual, but it can be dangerous. The law of discovery now makes person-to-person e-mail as admissible in a discrimination suit as financial records are in proving an applicant’s qualifications.

According to Chris Hitchcock, a partner with the Manhattan law firm of Ohrenstein & Brown, "The more subjective the basis for rejecting an applicant, the greater the chance that a jury is going to be making a determination as to whether the rejection was for discriminatory reasons. E-mail is more dangerous because it is like a record of a casual conversation."

Though co-op lawyers defend their clients as well as they can, a good defense begins with boards taking a proactive approach in keeping their counsel informed of the reasons for rejection. Says Hitchcock, "If someone believes they are about to be sued, they need to gather all relevant materials–including e-mails–and take them to their lawyer to assess their exposure."

And that exposure, says Joseph Colbert, an attorney with the Manhattan law firm of Rosen and Livingston, could be an expensive proposition. E-mail discovery, in which a computer consultant may be required, could be extremely costly.

According to Peter Schillinger, a partner with the Manhattan law firm of Schillinger & Finsterwald LLP, in the last three or four years, e-mail has become more and more the most common means for communicating with other board members. And therein, lies the risk, adds Colbert. Many board members conduct board business from their offices using work e-mail and that could add another layer of exposure to the equation. In the event of a lawsuit, your entire company or corporate e-mail system could be subpoenaed and those hard drive records seized, he says.

"I expect that in the next ten years [e-mail] will become a dominant form of communication," says Schillinger. "I advise technically unsophisticated clients not to send sensitive material over e-mail because such e-mails may find their way to locations that are unexpected and unknown to the sender and the recipient. An e-mail that you think has been deleted may remain on your hard drive. Maybe the best procedure is to have the letter delivered by hand," he says.

In terms of the legal weight given to e-mail, hardcopy correspondence, and meeting minutes, none is necessarily given more credibility than another in court. The important thing to remember, says Schillinger, is, "An e-mail can serve as an evidentiary basis of a discrimination suit just as effectively as a typewritten letter. The sender of an e-mail should be just as guarded in the language used with respect to the review of prospective shareholders as he or she would be in producing a typewritten letter regarding the same subject."

And forget about just deleting questionable e-mail messages and trying to forget they ever happened, says Hitchcock. "If a board member is in a deposition and answers ‘yes,’ that they did discuss the applicant via e-mail, but says ‘no,’ they can’t produce the documents, I can’t imagine a court substantiating that. The court tends to be quite expansive these days in what is discoverable. I think that the precedent is there, and courts will continue to be guided by it."

E-mail and Internet communication has made our lives much easier in many ways; we can reach out and connect with people down the block or around the world, and exchange thoughts and ideas at almost the speed of light. Handy as it its, however, it’s important to be aware of potential risks when dealing with sensitive issues via e-mail. Save yourself and your board time, money, and conflict: take the time to make sure that your language is clear and unambiguous before you hit "send."

Diane Frost is Editorial Assistant at

The Cooperator.

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