Books & Records

You’ve Been Served…Don’t Panic

The FIRST thing you need to do is to talk to the attorney for your associ­ation. Regardless of whether you’ve received an actual subpoena or a subpoe­na-like document (all of which are referred to herein as subpoenas for convenience) such as a request for production of docu­ments, the clock is ticking. Although the deadline for a response can be as long as thirty days in the District of Columbia and Maryland, the response time can be substan­tially shorter in Virginia— in some cases less than fourteen days. Remember, just because your association may be located in one juris­diction doesn’t mean it can’t be subpoenaed in another, and your attorney needs to help you to keep track of these deadlines.

Prompt communication with your attorney has another added benefit—it can limit the amount of work that may be needed to ad­dress the subpoena. Sometimes a subpoena is not valid or contains some other defect, which may negate the need to respond. Only your attorney can identify for you when no action may be needed. Professional man­agers have a crisis a day to address, and the board members are often volunteering for their community after work hours—so, it is critical to avoid responding to meritless or overly broad subpoenas to free up man­agement and board member time to con­centrate on other matters of import to the association. Similarly, sometimes a subpoena can be drafted in a manner that casts a wide net to make sure that the requesting attorney gets the item or document they want when they don’t know how the responder would classify it. Your counsel is in the best posi­tion communicate with the party issuing the subpoena to potentially narrow the scope of production.
Once you have provided your attorney with the subpoena, your association should identify one party to coordinate communication with your attorney regarding the matter.

 

Having too many cooks in the kitchen may lead to an increase in attorney’s fees and, perhaps more importantly, increases the chance that something gets missed by a key person being left out of an email when they shouldn’t have been. If your association is professionally managed, all communication should flow through your manager as they serve as the custodian of records for your community. If your association is self-man­aged whichever board member has the most communication with your attorney’s office and access to association records is probably the individual who can most effectively and efficiently communicate with counsel.

You and your attorney are going to have a conversation about what needs to be collect­ed initially, which will guide you through the process of collecting responsive documents. Although the documents will vary somewhat based upon the type of action pending in the courts, at a minimum you will be providing your attorney with copies of any official re­cords of the matter (hearings, minutes, etc.) as well as any relevant emails.

You may have an inclination to redact (or restrict) information prior to providing it to your attorney. Don’t do it. There are specif­ic court rules about what can and cannot be redacted from official association records. While it may seem reasonable to you to redact, for instance, the name of an archi­tectural rules committee member with no decision-making power in an e-mail, nothing about that sort of information is protected. Moreover, that information may be valuable to your attorney in identifying the parties it needs to talk to in order to have a full grasp of the issues at play. In the end, if that person’s name really is immaterial your attorney can work with opposing counsel to redact the name before the e-mail is entered into evi­dence and becomes part of the public record.

Similarly, you may be inclined to decide inde­pendent of counsel that some documents, which fit the description of what is asked for but are not important and therefore shouldn’t be turned over. Again, don’t do it. In addition to withholding potentially important informa­tion from your attorney, this is when you may inadvertently get the association into trouble. If you do not turn over all the documents which are asked for, no matter how irrelevant you may think they are, you are going to make sure by withholding them that your attorney (and maybe your association representative) ends up in front of a judge explaining why they refused to comply with a lawful subpoena. Even if your attorney is able to make that prob­lem go away, you have put in the mind of the judge that your association doesn’t follow the rules and may not be trustworthy, which can have lasting consequences.

 

By Kimberly O’Halloran-Perez, ESQ.
Kim is a community association attorney with Rees Broome, PC in Tysons Corner, Virginia. Her prac­tice is devoted exclusively to the representation of community associations in Maryland, Virginia, and West Virginia. Kim is also a past president of WMC­CAI.

By R.A. Hurley, ESQ.
R.A. is an attorney at Rees Broome, P.C., practicing in the firm’s community associations law group. He has particular experience handling bankruptcy and debt collection matters.

 

 

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