Condo Media - January 2018 - 41

management and governance of the
community, and to make those records
available to owners who request them.
Because most of these statutes and
documents were written before email
existed, they don't usually reference
electronic communications specifically. But it is possible, and
even likely, that some courts would
rule that email communications
qualify as official records that boards
must preserve and make available
to owners. Consider that prospect
for a moment.
Trustees speaking in an open meeting usually temper their comments
accordingly. They don't always exercise the same restraint in email communications. Intemperate remarks in
a meeting will be heard only by those
attending it and, in most cases, soon
forgotten. Angry or unflattering email
messages that become part of the
association's official records could be
featured on owners' blogs or on Yahoo,
where they will have a very wide audience and a very long shelf life.
THE 'OOPS' RISK
There is also the potential for sending
an email accidentally to someone who
shouldn't receive it. Hitting "reply all"
on a message will send it to everyone
on that email thread, including,
perhaps a board member about whom
you have made disparaging remarks-
awkward, to say the least. Mischievous
or malevolent hacking by a third party
could also circulate what is supposed
to be a private email discussion among
board members to the entire community-or the world.
The Missouri Bar Association is so
concerned about the security risks
inherent in email, it requires law firms
to include this disclaimer in their electronic communications:

1
2

Email communications are not a
secure method of communication;
Any email that is sent to you or
by you may be copied and held
by various computers it passes

through as it goes from sender
to recipient;

Persons not participating in our
communication may intercept our
communications by improperly
accessing your computer or my
computer or even some computer
not connected to either of us,
which the email passes through.
I am communicating to you via
email because you have consented
to receive communications ...

IS IT PRIVILEGED?
The unintended and possibly widespread circulation of "private" email
communications, through hacking or
carelessness, could prove embarrassing for individual board members and
for the entire board. But potential
embarrassment isn't the only concern.
Email messages are no different
from any written document you might
produce: Anything you say in an email
message is potentially "discoverable"
by your adversaries in a legal proceeding, who could, and almost certainly
would, use any negative or incriminating information against you.
Communications with the association's attorney are protected by
attorney-client privilege, and so, aren't
generally subject to discovery-unless
board members waive the privilege,
which they would do, albeit unintentionally, by sharing the contents of an
otherwise protected communication
with a third party that isn't covered by
the privilege.
Illustrating the point, a Massachusetts Superior Court judge
ruled recently in a suit challenging
the transfer of stock that email communications between the plaintiffs
and their attorney weren't privileged
because the plaintiffs had shared those
messages with their brother, who was
not represented by the attorney.
This is a complex area in which
the legal boundaries aren't entirely
clear. For example, a board member
who shares the contents of an attorney's
privileged communication with a

THE
'OOP S'
RISK
There is also the potential
for sending an email
accidentally to someone
who shouldn't receive it.
Hitting "reply all" on a
message will send it to
everyone on that email
thread, including, perhaps
a board member about
whom you have made
disparaging remarks-
awkward, to say the least.
Mischievous or malevolent
hacking by a third party
could also circulate what
is supposed to be a
private email discussion
among board members to
the entire community-
or the world.
January 2018

Condo Media - January 2018

Table of Contents for the Digital Edition of Condo Media - January 2018