Most homeowner associations (HOAs) seldom become involved in litigation other than collection-related litigation involving delinquent members. However, it is beneficial for the board of directors to have an understanding of certain aspects of this legal process. The discovery phase or simply discovery is one major aspect of civil litigation. Discovery can be one of the most burdensome phases of litigation given the time involved and the resulting costs.

After litigation has been initiated by the successful filing of a lawsuit, discovery is a pre-trial process through which the plaintiff and defendant can obtain evidence from the other party or parties before the trial begins. Through the law of “civil procedure,” discovery methods can be interrogatories, document production, or request for admissions and depositions. Under the law of civil procedure, discovery can be exceptionally broad and can include any material which is reasonably calculated to lead to admissible evidence.

Generally speaking, civil procedure establishes the guidelines for how courts are to conduct civil trials. The supposed purpose of established civil procedure, per the Federal Rules of Civil Procedure, is “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Civil trials are judicial proceedings to resolve claims between one party or parties or class against another. Civil trials are differentiated from criminal trials in that criminal trials are where the state prosecutes a party or parties for violating criminal statutes.

Interrogatories

• One of the most common methods of discovery, are written questions from the opposing party that must be answered in writing. These questions are basically establishing the particular party’s version of the issues surrounding the litigation. These questions can be general or broad; “What happened at the board of directors meeting on September 28, 2020?”. Or the questions can be narrow or specific; “Is it the board of director’s position that the fence the plaintiff installed at their home on July 7, 2020, is not in compliance with the declaration of covenants?” Only the parties to the litigation respond to interrogatories, as opposed to depositions where both litigating parties and third parties (witnesses, experts, etc.) are questioned.
• The HOA’s attorney should always be involved in the board of director’s response to interrogatories. Issues can arise concerning response time restraints mandated by the trial court. There is usually a time limit to respond, such as “Interrogatories shall be answered and responded to by affidavit filed within 30 days, or other time period prescribed by the court.” The issue with the homeowner association board of directors is the standard decision-making process can make quick responses to interrogatories challenging. Typically, with homeowner association boards, one board member, will be appointed by their fellow board members to coordinate or liaison legal responses with the HOA’s attorney. This is typically, but not necessarily, the board president. The board member that is appointed to take on this task, must have good organizational skills and have the ability to respond quickly to the HOA’s attorney.

Document production

• Or a request for production, is the requirement that all physical documents, electronic data, or other tangible materials be provided to a litigating party. This request for production may not only involve opposing litigating parties but third parties who may have relative information, such as a management company. For example, an HOA member’s attorney may request copies of all e-mail communications between the property manager and the board of directors regarding the HOA member.
• This aspect of the discovery process can be the most overwhelming and the HOA’s attorney should take the lead on this process as well. It is not uncommon for a board of directors and their vendors e.g., the homeowner association’s management company, to receive subpoenas from opposing counsel demanding the production of “all” the records of the homeowner association. Usually, such broad subpoenas are viewed improperly by the court and easily deemed as such by the court.
• There was a case in Florida with a very large condominium association that had been in existence since the 1970s that received a broad subpoena demanding production of “all” their records. This homeowner association diligently responded to this subpoena demand with just over 65,000 printed pieces of paper delivered in twenty-one boxes to opposing counsel. These produced documents were composed of all emails between the board, managing agent, and membership on an array of subjects, with less than a dozen emails related to the specific lawsuit. This document production also included all the work orders, paid invoices, financials, bank statements, ARC submissions, vendor contracts, board meeting minutes, over a dozen committee meeting minutes, and other miscellaneous records, all going back close to fifty years. The production costs that were billed back to opposing counsel and his client exceeded the monetary demands of the original lawsuit.
• This type of discovery is also a cautionary tale for homeowner association boards of directors. Subpoenas for discovery will typically ask for all communications between board members and all other involved parties to the suit. All communications about the parties to the suit are discoverable with generally the only exception being between the board of directors and the HOA’s attorney.
• The cautionary tale here is that personal opinions or thoughts need to be measured. For example, opinions expressed in inter-board emails need to be measured with how these comments will sound being read back in a courtroom. This is not to say anything should be covered up or done improperly with regard to any board of director communications. Two actual examples, that on the surface may seem innocuous because they were originally just between the board of directors, however, these comments had profound influences on actual homeowner association court cases. Such as a board member stating in an email to the rest of the board of directors that the opposing party “has some good points about their lawsuit.” The second example is a board member making a derogatory comment on the mental health of the opposing party to the lawsuit against the homeowner association. While the opposing party’s mental health issues may be blatantly obvious unless the board member making that comment is a psychiatrist, are they medically qualified to make that type of assessment? And by chance, even if they happened to be medically qualified to make that type of assessment, how does the derogatory way it was expressed in an email sound being read aloud in a courtroom? Both of these examples produced in discovery did not bode well for the homeowner association when used in court by the opposing side.

Continued in Part Two

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Legal Disclaimer: This blog is presented solely for entertainment and educational purposes. The blog’s author is not an attorney, nor offering legal advice. The blog’s author and publisher are not offering or presenting this work as legal or any professional services advice or guidance. State statutes regarding HOAs can vary from one state to another so state statutes will need to be reviewed and may conflict with the material found within this blog. Every HOA is different, and the advice and strategies contained herein may not be suitable for every situation. The reader should always seek the services of a competent and experienced homeowner association attorney who specializes in homeowner association law.