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Dos and Don’ts for HOA Board Members When It Comes to E-Discovery

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You were just elected as a member of the board for your association and with that election comes a series of responsibilities. With so many people living in your building, along with those who service the building, odds are you may deal with a legal issue or two during your tenure. If any of these legal issues turn into an actual lawsuit, do you know what information will be collected during the lawsuit? Do you know how to protect your privacy from being exposed in a legal case?

During a lawsuit the parties engage in discovery. Discovery is the exchange of legal information and known facts of a case. Think of discovery as obtaining and disclosing the evidence and position of each side of a case so that all parties involved are on the same playing field. Electronic discovery, or eDiscovery, is the electronic form of discovery. Computers, phones, and smart watches have integrated themselves into so many facets of our lives and emails, text messages, photos, videos, and calendars are all forms of electronic data which would be subject to eDiscovery in any litigation. If you use your own computer, phone, or other device when conducting association business, those devices and the data transferred from those devices can be fair game during a lawsuit. The problem, though, is that your private information could also be discovered. To protect against personal family photos or medical information becoming part of discovery, we’ve compiled a list of dos and don’ts when it comes to your role as an association board member.

  • DO create a separate email account. Create an email for association business, only. By having separate accounts, your privacy is better protected. Only use the association email account for association business. All association related communications should be communicated using your official email. Also, if you like to use digital calendars or reminders on your smart phone or computer, make sure to only use your official email when imputing reminders that deal with association business. The opposite is also true—do not use your official email for private communications like sharing photographs of your family. Different providers allow you to create free emails addresses. Text messaging follows the same rules. There are different applications—“apps”—that allow you to text without using your phone’s primary text messaging service. Keep in mind, if you use programs like WhatsApp to message family members and then use the same program to send association related messages, you could be exposing all of your other conversations to collection during eDiscovery.
  • DO think before you communicate. Remember who you are sending any email or text message to and if that communication is private or business related. If it is for business, ensure that you are using your business related devices and applications.
  • DO be aware of what technology surrounds you. Certain technology can be used to track or record information. Devices with Amazon, Alexa, or Google Home are set up to respond to your voice commands (i.e. like “hey Siri”, “Alexa”, or “hey google”). These devices create issues because they record conversations and can be subject to discovery. Another example of a commonly found recording device in a residential area are video doorbells. These devices record the surrounding area and can store video for lengthy periods of time. Even using your private printer or copier machine can create issues because many of those machines create records that can identify dates and times of use.
  • DO NOT take photographs on your smart phone for the building. Use a separate camera for association business, or require a management person to take official photographs.
  • DO NOT use common area internet connections. If you connect to the “WiFi” in your condominium gym and then send out emails, your information can potentially be requested. To protect against this, do not connect to public WiFi.

The above list can help you avoid having your extremely personal information collected in a lawsuit involving association related business. The next time you want to tackle an association related matter, take an extra couple of seconds before firing off an email or taking a photo to evaluate if you are potentially exposing your personal information.

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