Like it or not, e-mail is a permanent fixture of contemporary business communications. In real estate, board members and property managers use e-mail to discuss the most official and the most personal matters of their lives, from scheduling meetings and disseminating documents to sharing quirky videos on YouTube. E-mail allows board members to discuss their concerns without ever having to be in the same room.
But what even the savviest businessmen often overlook is that, when we communicate via email, we leave a written record of everything we say. An email is a legal footprint (in fact, The New York Timesreported in June that prosecutors in the Bear Sterns case would be basing their case against high ranking executives there on a series of incriminating e-mails, a tactic not unlike what we saw in the Enron prosecution.) Used with due caution, e-mail is the businessperson’s best alibi, but occasionally, it can be used against you, too.
In a lawsuit, discovery is the pre-trial process wherein the two parties can request evidence from one another. New Jersey law provides that any relevant written communication is admissible as discovery, excluding correspondence between the client and his attorney. The law makes no distinction between electronic and written discovery (and actually, most investigators find e-mail more convenient to work with, since it’s easy to search electronically.) In essence, it’s all fare game to opposing council, should a legal action be brought. A written letter has the author’s signature at the bottom, tying the author to the content of the letter. Likewise, e-mail is linked to a specific account, whose owner is responsible for all emails sent from that address.
Fran McGovern, an attorney with McGovern Legal Services, LLC in New Brunswick, cautions managers and board members that all e-mails are potentially in play in a litigation, not just those sent on company e-mail.
“In a litigation, there would not be much of a line drawn between private and personal accounts,” he says. “If you send emails concerning business, the attorney is going to ask for any and all communication [relevant to the matter being litigated.]”