Q&A: Establishing an email trail for HOA litigation isn’t as easy as it seems
QUESTION: For two years I tried to get an electrical problem fixed in my condo. Though my emails were mostly ignored, I made a point of writing the association manager and board directors weekly, sometimes emailing them several times a day. The manager even told me she was sick of getting my emails.
In my mind, sending emails chock full of information regarding my unit problems was a way to document my situation. I really believed that the more I wrote, the more proof I had that the board and managers knew of the problems and still screwed up. I was wrong. After spending tens of thousands of dollars suing the association, the first thing the board’s attorney did was dismantle two years’ worth of my evidence by having most of the emails ruled inadmissible.
Without my emails, I was struggling to adequately prove my case. Worse, the content of my emails were misinterpreted, and sinister meanings were assigned to everyday words and phrases. The board’s attorneys argued that I was the one creating a liability for the association. I thought I had a great case until association attorneys made me look like a whack job. Where did I go wrong?
ANSWER: Documenting everything is a great practice to protect your investment. Communications with the board and management should always be in writing. Even if a particular conversation takes place in person or over the phone, something in writing should be sent to confirm what was previously discussed. However, “documenting” and sending emails are not always the same thing.
Email is quick and easy, but too often the nuances of the sender’s position, and the possible legal ramifications of what is said, are lost before the “Send” button is hit.
Properly documenting something requires a different approach for each situation. In general, it entails sticking to the facts and not including commentary or opinions. The court’s idea of what constitutes “facts” may differ from your own. And even though acknowledging the opposition’s argument is risky, nothing that happened can be left out, if for no other reason than to avoid the perception of bias and the possibility of discrediting the record you create. Stick to describing actions and times — what people did, when they did it and what they said. If you remember the exact words that were used, include a quote.
The content of an email that documents a situation may not conform to how you would normally write to a friend or neighbor, but following some simple steps can increase the chance that your emails are useful in litigation. Communication with the association should not be written in a stream of consciousness style. Owners should even consider consulting with an attorney prior to entering into a correspondence ping-pong match with boards and management.
Also, in this environment, emails and letter writing, even to one’s neighbors, should be kept to a minimum and used only for official correspondence related to your property. The court will not be limited in using the emails that you intended to document your complaints. If there is a dispute, casual emails, letters and conversations with other homeowners also may become part of the court’s record, as these communications are not privileged or confidential.
When contemplating an email consider: Is it really necessary to write this? Would someone who doesn’t know you or your situation understand its content without more information or context? Will your writing appear credible and thoughtful or petty, even threatening?
Another problem that arises is that not all email addresses contain the recipient’s name and not every response from that recipient includes a signature. To be used in court, every communication, including electronic communications, must be authenticated, and either party can challenge the authenticity of each document as well as its admissibility.
The authentication process usually requires some way to prove who the sender and recipient are. This means also proving that the party you claim you were communicating with is actually who you wrote to and then proof that that party received your communication. In a thread of emails, each separate email must be authenticated. Using names and confirming email addresses in writing may help that process for the court and makes it easier for your legal representative.
Always remember, every document you create contributes to the evidence trail that may be used against you in a court of law.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 ornoexit@mindspring.com
