Victor M. Metsch in Board Operations on January 25, 2018
For many co-op and condo board members, email is the default means of communication. Most people have two accounts: a personal one that may also contain family, medical and financial information; and a business account that might contain confidential, proprietary or insider information. Both accounts may contain information that is protected by the attorney-client, marital, or another privilege.
When co-op and condo boards get involved in disputes and lawsuits – a virtual inevitability in New York City – the process often leads to what’s called “electronic discovery,” which includes the search of email accounts. This is a minefield because there may be no expectation of privacy when a board member uses a personal or business email account for co-op or condo business. In a dispute or litigation, subpoenas can be served and those email accounts may be subject to disclosure to third parties. The cold reality is this: the use of a personal or business email account could result in the loss of attorney-client or other privilege, exposing the co-op’s or condo’s delicate inner workings.
There is no across-the-board expectation of privacy when using a business email account for unrelated purposes. To the contrary, many office policy handbooks expressly admonish staff not to use their business accounts for personal or collateral matters, often with the express warning that such accounts are not private and secure and are subject to internal review.
A New York statute (CPLR Section 4548) states that a privileged communication does not lose its privileged character simply because it was sent by email. But office procedures and regulations may reduce or eliminate that expectation of privacy.
Whether or not a privilege has been waived is decided on a case-by-case basis. The courts consider four questions. Does the company maintain a policy banning personal use of email? Does the firm monitor the use of a staff member's computer or email? Do third parties have a right of access to the computers or email? And lastly, did the business notify the employee, or was the employee aware of, the policies on computer use and monitoring?
In a recent decision, for example, an appellate court held that an employee's use of his employer's email system for personal correspondence with his wife waived the confidentiality necessary for finding that the email was protected by the spousal-communication privilege. Upon a review of many of those emails, the trial court found that some were protected by the attorney-client privilege, and others were not.
To prevent the release of delicate information through electronic discovery, boards and their managing agents should establish a separate email account that is dedicated exclusively to co-op or condo business.
Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.
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