FROM PRIVATE EMAIL TO TRIAL EXHIBIT: THINK TWICE BEFORE HITTING “SEND”
A Common Scenario
Imagine you are the President of the Board of Directors of a 50 unit Condominium Association. The
Board has four members, each of whom works a full time job, and has other family, community and social
obligations that make time to handle Board matters a limited and precious commodity. To limit face-to-face
meetings, the Board has begun having discussions about issues concerning the building via email. You
participate in these email discussions using your work email address, so that you can receive and respond to
issues quickly as they arise throughout the day.
Well into your tenure as President and after the email discussion practice has been well-established
among the board, a Unit owner, “Brenda,” contacts the Board. Brenda has been in a car accident and has injured
her leg. Brenda’s doctor has issued her a temporary handicapped parking permit, and Brenda is requesting that
the Association allow her to park in the parking spot closest to the entrance of the building. The Board emails
about Brenda’s request for several days, and ultimately decides that it cannot honor Brenda’s request because
all the parking places are deeded, including the spot nearest the door. During the course of the email
conversations about Brenda’s parking place, it becomes apparent that a few of the board members (including
yourself) have had negative experiences with Brenda and do not think very highly of her. Many of the emails
during the discussion suggest that Brenda is “not that hurt” and is “trying to take advantage.” Some emails even
go as far as to suggest that Brenda is “lazy” and “a liar.” Your final email, which was sent as a “reply all” to a
long string of such negative comments, states simply “I agree with all of you – Brenda is a whiney cry-baby who
is making all of this up for attention. She can walk her big butt across the parking lot just like the rest of us!”
The Board then formally denies Brenda’s request for parking accommodation, and Brenda immediately
files suit claiming discrimination, and for damages for aggravation of her leg injury from having to walk across
the parking lot every day. Are the Board’s emails about Brenda safe from discovery in the litigation? As is
discussed below, probably not, and, to make matters worse, fact that the emails were sent from your work
computer may involve your employer in the litigation.
Board Emails are Discoverable in Litigation
Even before any litigation has begun, the Illinois Condominium Property Acti (“Condo Act”) requires that,
upon request of any unit owner, the Board make available for inspection an copying the entirety of the
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Association’s records, with the limited exceptions of documents relating to the hiring or firing of employees,
pending or threatened actions by or against the association, amounts owed by another unit owner, and
documents regarding the sale or lease of another owner’s unit.ii Under the Illinois Court Rules, once a suit is
filed, a party to litigation can be compelled to produce documents for inspection or copying upon the request
of any other party in the litigation.iii Discovery rules are liberally construed in favor of production in Illinois,
obligating a party to produce not only what would be admissible at the trial, but also that which might lead to
the discovery of admissible evidence.iv A party may not withhold documents from discovery simply because
they may be damaging to his case, or because he does not intend to use them at trial. v While there are
numerous recognized privileges in Illinois, including the attorney-client privilege,vi no such privilege attaches to
communications between a board that are made before litigation is pending or even anticipated.
In short, because the emails about Brenda occurred before she threatened or filed suit, there is no
legitimate basis to withhold them from production pursuant to a request under the Condo Act, or under the
Illinois discovery rules. You will, therefore, need to turn over the uncomplimentary emails about Brenda. Your
problems, however, may not end there.
Your Employer’s Computers Are At Risk
Complicating the matter even further is the fact that the offending emails about Brenda were sent from
your work computer. The obligation to produce documents pursuant to discovery includes the obligation to
allow access to or to produce electronically stored information.vii If you deleted the emails after sending and
receiving them - which is common practice for individuals sending and receiving non-employment related emails
at work – your employer may need to grant Brenda’s attorney access to its computer or server to recover the
deleted emails which are still stored there. Specifically, if documents or tangible things are requested from a
party pursuant to discovery and the requested items are not in that party’s possession or control, that party is
obligated to give information about the items’ whereabouts.viii When Brenda’s attorney learns that the emails
likely remain stored electronically on your employer’s email server, Brenda’s attorney may – and likely will –
subpoena those emails directly from Brenda’s employer.ix Your employer will be obligated to comply, or risk
being held in contempt of court or worse.x
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A Better Way to Handle board Emails
While it might be advisable for Boards to avoid informal email communications altogether to avoid the
pitfalls describe above, the realities of today’s technology-driven, fast-paced lifestyle make such a suggestion
almost laughable. There are, however, some practical tips a board should consider to safeguard their
communications:
1. Set up an email list server or chat group specifically – and exclusively – for Board business.
Free services are available through Google, Yahoo, and other various providers. By using such a
designated system, the Board can at least avoid discovery into their work or personal email servers. Further, if
and when emails are requested pursuant to discovery, they will be easily accessible and kept in one, unified
location.
2. Send only one subject emails.
As is often the case, an email string may start with one topic and, several replies later, include a variety
of other, unrelated topics. Sometimes, people will go so far as to pull up an old email and “reply all” to it to
start a whole new conversation, just so that they do not need to newly type in email addresses. While this may
not be a problem with personal emails, it can create logistical issues for boards. If the board engages in the
practice of emailing about different units and different building issues in the same email string, the emails will
need to be redacted prior to production in litigation if they include confidential matters regarding other unit
owners. Or, if there are irrelevant but non-confidential parts of the email string, those may be discoverable,
even if embarrassing or unflattering.
3. Set up a litigation specific email service list.
If and when litigation is threatened or pending, the work product doctrine and attorney-client privilege
will attach. In other words, any emails sent between the Board and its attorney regarding the anticipated or
pending claims will not be subject to discovery. It is very important, however, that this privilege not be
destroyed by adding non-board third-parties to the distribution list, by forwarding emails to people other than
the board or its attorney, or by expanding the conversation to matters outside the litigation. Good practice
dictates that the “single subject” rule described above be strictly followed when there is litigation, and that
“CONFIDENTIAL COMMUNICATION PURSUANT TO LITIGATION” or similar language appear in the subject line or
prominently at the beginning or end of the email.
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4. And…most importantly…think before you hit “send.”
It is very easy – especially with a board that has been working together for a long time – to dispense with
formalities and to allow the conversation to become casual (or even irreverent). That said, litigation involving
condominium associations is not an uncommon phenomenon. A casual comment, joke, or observation in an
email today could be a power point slide for the jury next year. Before you hit “send” ask yourself whether you
would be okay with the content of your email being made a trial exhibit.
765 ILCS 605/1 et seq.
765 ILCS 605/19.
iii Illinois Supreme Court Rule 214 (ILCS S. Ct. R. 214)
iv Polowick v. Meredeth Const. Co., 29 Ill.App.3d 1092, 1096-97 (2d Dist. 1975).
v Southern Illinois Airport Authority v. Smith, 267 Ill.App.3d 201, 207 (5th Dist. 1994)(“We are also not suggesting, advocating, or
condoning withholding from discovery documents that may be damaging to the party requested to produce such. Simply
because a party does not wish to use a document in any manner does not excuse the party from producing a document within
his knowledge and control.”)(internal citations omitted).
vi Illinois Rule of Evidence 501 (ILCS R. Evid. 501)
vii ILCS S. C. R. 214 (the production of documents upon request includes “…all retrievable information in computer storage…”)
viii ILCS S. C. R. 214 (“If the party claims that the item is not in his or her possession or control or that he or she does not have
information calculated to lead to the discovery of its whereabouts, the party may be ordered to submit to examination in open
court or by deposition regarding such claim.”)
ix Illinois Supreme Court Rule 204 (ILCS S. Ct. R. 204)(“A deponent shall respond to any lawful subpoena of which the deponent
has actual knowledge…The notice, order, or stipulation to take a deposition may specify that the appearance of the deponent is
excused…if copies of specified documents or tangible things are served on the party or attorney requesting same by a date
certain.”)
x ILCS S. Ct. R. 204(d) (A non-party may be held in contempt of court or an order of body attachment may issue for noncompliance with a subpoena)
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