Dale J. Degenshein, Stroock & Stroock & Lavan

Stroock & Stroock & Lavan, Special Counsel

Dale J. Degenshein

The client’s tale. Many years ago, I read through hundreds of e-mails exchanged between nine board members and their managing agent. As I read, it was clear that the board members and agent wrote as if they were speaking to each other – that is, they did not appear to acknowledge that their words were being recorded and would be available (and discoverable) if anyone demanded them. The board members “gossiped,” complained about unit-owners, and often mixed personal and business issues.

While the specific issue I was dealing with had nothing to do with discrimination, any decent lawyer could have made a feast of e-mails in which one board member had accused others of being chauvinists and even misogynists. She wrote, essentially, “don’t talk to me like that because I am a woman,” to which certain other board members responded with expletives. In addition, given the time stamps, it was clear that no one had stopped, taken a breath, and thought about formulating a response. We were able to settle the case I was working on, and the e-mails never came to light; however (I hope), the incident helped teach this particular board an important lesson.

The lawyer’s take. Boards and managing agents must remember that questionable e-mails are not something that happens only to politicians. We all have read the newspaper and said, “How could they have put that in an e-mail?” Yet we forget that while our e-mails probably will not appear on “Page Six,” the off-the-cuff or cavalier e-mails we sometimes send may come back to us one day. We should all remember to think about how our e-mail statements and comments may be viewed by another, including a court.

Case closed. This story reminds us that we should not forget that e-mails remain long after they are sent, and that we should think about what we have put in writing before sending.