Like it or not, e-mail is a permanent fixture of contemporary business communications. In real estate, board members and property managers use e-mail to discuss the most official and the most personal matters of their lives, from scheduling meetings to disseminating documents, to sharing a quirky video on YouTube. E-mail allows board members to discuss their concerns without having to call a meeting, work around everyone’s schedule, and find a place to physically meet.
But what even the savviest businessmen often overlook is that, when we communicate via e-mail, we leave a written record of everything we say. An e-mail is a legal footprint. (In fact, the New York Timesreported in June that prosecutors handling the Bear Sterns investment fiasco would be basing their case against some of the firm’s top executives on a series of incriminating e-mails—much as their colleagues did in the Enron prosecution.) Used with due caution, email is the businessperson’s best alibi, but occasionally, it can be used against you, too. That’s why it’s important to exercise discretion and good judgment when conducting board business via e-mail.
In a lawsuit, discovery is the pre-trial process wherein the two parties can request evidence from one another. Generally speaking, New York law provides that any relevant written communication is admissible as discovery, excluding correspondence between the client and his attorney. The law makes no distinction between electronic and written discovery (and actually, most investigators find e-mail more convenient to work with, since it’s easy to search electronically). In essence, it’s all fair game to opposing counsel should a legal action be brought. A written letter has the author’s signature at the bottom, tying the author to the content of the letter. Likewise, e-mail is linked to a specific account, whose owner is responsible for all e-mails sent from that address.
According to attorney Peter Schillinger, a partner with Odesser, Schillinger & Finsterwald, LLP in White Plains, “E-mail should be deemed to have the same legal weight and effect as a printed letter with an ink signature. A member of a cooperative board of directors must be careful when sending e-mails which speak to matters affecting legal rights and responsibilities, including communications relating to the rights of shareholders and the applications of prospective purchasers.” Personal feelings about an applicant, for instance, are dangerous grounds to cover in an e-mail.
Litigation is often impossible to predict, and legal proceedings can be brought long after an e-mail has been sent and forgotten. At the same time, even once you’ve removed an e-mail from your inbox, copies of the message are often stored elsewhere by the service provider. In effect, once you send an e-mail, you accept that it may be used as evidence for or against you at some point in the unforeseeable future.