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Posted 08/01/10

Watch Out For the Pitfalls

İBeth A. Grimm, PLC

D ow many of you think about where your e-mail goes, where it is stored, and what kind of damage it might do,... before you press the "send" button?

Believe it or not, there are some more or less unwritten "rules" relating to the use of the internet (email). It seems people forget the "rules" with the ease of the simple act of typing a message, and pushing "send". The hassle of the telephone and voicemail "tag" is gone. The accountability of face-to-face communication is out the window. Inhibitions that might otherwise exist seem to dissolve. People often act differently, more bold, and less "reasoned" when communicating by email. It is important to understand that use of email for association purposes can be easily abused, in light of existing laws regulating communications among board members and meetings requirements. Here are some of those: 1363.05 (b) requires open meetings except for specified issues entitled to executive consideration, 1363.05 (d) requires minutes of any meeting to be made available to the members, 1363.05 (f) considers 'meetings' to include any congregation of a majority of the members of the board at the same time and place to "hear, discuss, or deliberate upon any item of business scheduled to be heard by the board, except those matters that may be discussed in executive session." These rules do apply!

Possible Unlawful Meetings: If board members are discussing any business of the association via email, and especially if they end up together through instant messaging or otherwise, that could constitute a "meeting" under the statute. Legal meeting requirements would apply. If decisions are made outside meetings via email "polling" - that conflicts with legislation requiring access by members to meetings where open discussions should be held, and could be challenged. (Telephone "polling" was one concern by legislators who expressed a necessity for open meetings rules so that "behind the door" decision-making would be eliminated except as to specific subject matter).

Lack of Consideration: Using e-mail or sending a message on the Internet is not like using the telephone. On a telephone call, there is someone on the other end that has the ability to respond or to challenge what you say. When using e-mail, it's not like having a face-to-face dialogue. There is no one on the other end that can contradict you, challenge, or punch you in the nose. When using e-mail, it is not like pounding away on a "vent letter," sticking it in an envelope, and having a "cooling off period" between the time you seal the envelope and mail it. You can pull it back before you stick it in the mail. It is virtually unretrievable once sent.  This can be a problem. It seems that some people find great satisfaction in "venting" via e-mail. Personalities often change. I find that people tend to be more aggressive, more careless, more pointed, more emotional, more condescending and less thoughtful, less careful, less amiable, and less aware of protocol.  Given the "trail" of the message, this can lead to claims by owners of unfair treatment, lack of due process, and even discrimination if email is used to disparage people.

"Oops" Factor: I have experienced these three things:

(1) Accidentally sending confidential email to the wrong person ­ definitely not the intended recipient!

(2) Receipt of a string of emails with a discourse between board members containing embarrassing and legally actionable (meaning discriminatory and defamatory) statements.

(3) Email from an opposing party who included a thread that included his attorney's advice to him about strategy! (Very upsetting to the other attorney!).

Lost Emails: Some experts say that 80% of the emails sent never reach their destination, especially when an email "blast" is sent. This is somewhat disturbing, except that things can get lost in snail mail also. I do not have any hard statistics to offer except to say that for some reason, people seem to get more upset when an email gets lost. I think that is because email promotes immediacy and instant gratification, and so the expectations of an immediate response are so much higher. Thus waiting for an email answer for 24 hours is about the same as waiting to find out a mailed letter was lost is more like 24 days. There is something about the time factor that seems to heighten emotions as well. And other ways that emails are lost: (1) mis-management of email communications; (2) server freeze, and (3) composition within an email itself ­ which can end in disaster when the wrong key is touched and everything disappears.

Lack of Security/Legal Protections: Other concerns involve security and "discovery" of messages sent by email. You may think you have "erased" damaging information from your computer but copies of e-mail messages may end up stored on mail servers that have general access to all material to check for unauthorized access and monitoring purposes. Because of this access and storage capability, discovery of the information for litigation purposes is considered by some to be guaranteed for all except encrypted messages. Client e-mail protection and security for homeowner associations communications (board and/or attorney) is as yet untested in the courts but it is possible that a fact finder could conclude that there is no reasonable expectation of confidentiality of unencrypted e-mail messages. 

The "test" if an attorney-client privileged communication or confidential communication is sent over the Internet, if such communications are demanded in a discovery order, probably comes from a 1947 case where Judge Learned Hand was examining the question of whether failure to use available technology could subject a person or business to liability of that failure causes injury to others.  The case was U.S. vs. Carroll Towing (1947) 159 F.2d 169.  The facts in this case were that a barge broke away from its mooring and sank, causing losses.  The court determined that because the barge company failed to use readily available protective resources (a bargee or attendant), the barge owner was liable for the losses.  From this case came a "test" that certainly could be used to test failure to use available technology to protect confidentiality e-mail messages.  That test of whether an owner/business' (or association board's or board members in this case) duties to protect against injuries involves three variables:

1)     The probability of the event (barge breaking away in older case)

2)     The gravity of resulting injuries (if the barge does break away in older case) and

3)     The burden of adequate precautions (cost of adding available protections)

In our world of email use, there are protections available (encrypted email, confidential statements, etc.). This case suggests that in our scenario, there is risk in dealing with any sensitive information via email, without taking precautions to protect it. 

Perhaps the most important message of this article is that Associations need to be aware of the pitfalls and implement "Use of Email" policies to assure adequate protections are in place.

If you want even more information about the use, management, and legal and practical aspects (good and bad) about email use, and some additional information about technology, confidential statements, litigation risks, etc. there is a Primer available at Publications with more than 25 pages of tips and things to thing about, as well as a sample usage policy. Look for the Email Primer EM-1, only $25.00!

  copyright 2010, Beth Grimm, all rights reserved.

By Beth A. Grimm, Attorney. A "service oriented" attorney and member of ECHO and CAI and various other industry organizations in California and nationally, host of the website www.californiacondoguru.com; two Blogs: California Condominium & HOA Law Blog, and Condolawguru.com Blog, and author of many helpful community association publications which can be found in the webstore on her site.