Co-op Board Learns That Emails Can Bite Back

The brawl begins. Back in 2017, the actors Justin Theroux and his then-wife Jennifer Aniston got approval from their Greenwich Village co-op board to combine their apartment with the newly acquired apartment next door, then embark on a $1 million renovation of the expanded space. But the downstairs neighbors, Norman and Barbara Rescinow, complained about excessive noise from the renovation work. A war of words erupted – including charges of harassment, voyeurism, and animal and spousal cruelty, plus a dispute over access to the shared roof deck. Eventually the brawl wound up in court, where a judge placed a restraining order on Norman Rescinow, forbidding him from trespassing on Theroux’s property or from using “abusive language” when addressing the co-op board or potential witnesses in the mushrooming litigation.

The latest salvo. In the ongoing legal war, Theroux filed suit against the Rescinows, the co-op and its board of directors, seeking numerous personal emails that Norman Resnicow sent through his work email account at the law firm Fox Horan & Camerini, where he is a partner. Resnicow contended that many of those emails were shielded from disclosure by the attorney-client and spousal privileges. Theroux argued that the emails were categorically foreclosed from being privileged because Resnicow sent them via his work email.

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The Resnicows produced some emails in response to the subpoena. Theroux was not satisfied with that production, believing emails were improperly withheld on grounds of relevance and on a meritless assertion of the attorney-client and spousal privileges. Theroux sought to compel production of all responsive emails sent by Norman Resnicow through his work email account.

The decision. In his ruling, Manhattan Supreme Court Justice Gerald Lebovits largely sided with Theroux. Lebovits directed Resnicow to produce all emails sent on his work email account that were “responsive to the demands in the subpoena served on the law firm that were not claimed to be shielded by the attorney-client or spousal privileges.” Further, Rescinow must produce a “privilege log” of all emails he has withheld, including emails the court previously held to be privileged. So Rescinow’s entire email account at his law firm will be reviewed by Theroux’s attorney or the court.

The lesson. This case teaches an important lesson. Co-op and condo board members should never conduct official business or take actions using their office email – or, for that matter, their personal email. Such emails are open to discovery in legal proceedings and could come back to bite the co-op corporation or condo association. The best practice for board members is to set up a separate email account for building-only use – and use it exclusively for all building-related business communications.

Victor M. Metsch is of counsel at the law firm Smith, Gambrell & Russell.