Establishing an email trail for condo/HOA litigation isn't as easy as it seems
Los Angles Times
By Donie Vanitzian
26 August 2017
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.
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