SOME HINTS AND GUIDELINES TO CONSIDER WHEN USING E-MAIL

LOL, $0.02, B4N, F2F* Do you recognize any of these expressions? If so, you may be spending some time “on-line” communicating with others. E-mailing has become a part of many people’s daily personal and professional lives. Community Associations recognized very quickly that e-mail and web-hosting is a very effective method of reaching their membership and keeping owners up to date on all the neighborhood news: due dates for assessments, parties by the pool, and available baby-sitters. Many Boards of Directors routinely use e-mail to communicate with each other and their service providers, including their attorneys. Unfortunately it seems like no good thing comes without a cost, and the ease of e-mail has created certain exposure to Boards and members of associations who: 1) Are not circumspect in what they write in e-mails; 2) Are not careful in who they send e-mail to; and 3) Do not realize that e-mail communications are not necessarily private.

WATCH WHAT YOU SAY, HOW YOU SAY IT AND WHO YOU SAY IT TO!

1. E-mail is sometimes an extension of previous conversations or is sent in response to a situation. The context of the e-mail is missing, however, and therefore it is easy for recipients of such e-mails to misinterpret the message. This causes a more serious issue when e-mails are produced as “stand alone” documents at a later date. For example, a simple request to move some files from an office to the file room could be made in an e-mail as: “Please get rid of the files in my office.” Imagine how this could be misinterpreted if read out of context!
2. The “tone” of e-mails is often misunderstood. Some e-mailers will capitalize words they want to emphasize, but the recipient may well take this as “shouting.” Likewise many words have multiple meanings and it is difficult to know exactly what someone is intending when you cannot immediately question the sender about their true intent and jump to erroneous conclusions.
3. Be sure to proof read and spell check e-mail. Errors in spelling and punctuation reflect poorly on the sender. Some e-mails are so sloppy that it is difficult to even take the sender seriously.
4. E-mail users need to be careful about what you say. Recently I was forwarded an e-mail in which an owner who did not identify himself by name in the e-mail (but used his street address as his e-mail address) accused the Board in a community chat room of “falsifying documents” regarding the safety of the community pool. Publication of any statement wrongfully accusing individuals of dishonesty or illegal activity constitutes libel in Georgia, an intentional tort. In fact, the owner was just disgruntled about the level of training of the pool attendants, but that is not what he conveyed in the subject line! The owner could well have been sued by the Board.
5. Finally, remember that the “Reply” and the “Reply to All” buttons are right next to each other. Be careful in who you send your e-mail to. A corollary to this rule is that any e-mail can easily be forwarded. If you may not want some people to read your communication, the best strategy is not to send it at all.

E-MAIL IS NOT AS PRIVATE AS IT SEEMS!
E-mail is now an important tool in litigation and as shown above can be the critical piece of evidence in a case. There is no legal privilege for most e-mail communications between individuals and recent federal and state cases have considered and upheld a party’s right to subpoena and review e-mail communications in the same way as letters, faxes and other documents. Drafters, intended receivers and people merely copied on e-mails have been compelled to have their depositions taken to ask about the content and context of e-mails. Recently developers and owners of a parcel of property filed suit in Gwinnett County Superior Court over the denial of a rezoning request. Neighborhood activists were subpoenaed to explain their e-mail communications with county commissioners. According to a recent article in the Atlanta Journal Constitution (“Rezoning battler finds e-mails aren’t private” June 25, 2004), e-mail communications often are primary evidence in discrimination lawsuits. The article quotes John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School: “’People have very little sense of how detailed a record we’re leaving in the Internet space.’”

It is also critical that Board Members discuss whether e-mails to and from their attorney are privileged and create a policy to follow regarding those communications. (See the American Bar Association Formal Opinion (No. 99-413) regarding the Confidentiality of Unencrypted E-Mail between an attorney and her client.)

There is no denying that e-mail can be an easy, quick method of communications, but, as in all communications common sense and a cool head can go a long way to avoiding e-mail disasters. B4N.

*“Laugh Out Loud” “Throwing in your two cents’ worth” “Bye For Now” and “Face to Face.”