Emails Between Board Members Discussing Potential or Existing Litigation

Board members must be very careful with email communications between themselves and management regarding potential or existing litigation. These emails are all discoverable. This means that the opposition can obtain copies of them, and use the emails to either advance or defend their position in the litigation. Comments contained in these emails can be very damaging to the association’s interests.  There are two ways to protect the association from damaging emails. First, do not communicate via email regarding the facts or merits of any potential or existing litigation. These matters may be discussed in executive session, but the substance of the discussions should not be recorded in the minutes. Second, when it is necessary to discuss litigation matters via email make sure that counsel for the Association is included. When counsel is included the emails are protected by the “attorney-client privilege”, and therefore not available to the opposition.

Joel Kriger, Esq.