Confidential Not Privileged. Although executive session minutes are confidential, they are not necessarily privileged. The Davis-Stirling Act does not address the issue of litigation discovery. It does, however, state that executive session minutes are not reviewable by the membership. In general, once litigation has initiated, any matter may be discoverable if it is relevant to the subject matter of the litigation and not privileged. (Code Civ. Proc. §2017.010.) That means executive session minutes may be discoverable during litigation.
Redacting. However, any privileged information as well as information that is reasonably likely to compromise the privacy of an individual member of the association can be redacted.
Associations may withhold or redact information that is “subject to attorney-client privilege or relating to litigation in which the association is or may become involved” (Civ. Code 5215(a)(3)); “[t]he release of the information is reasonably likely to compromise the privacy of an individual member of the association” (Civ. Code 5215(a)(4)); or contains records of money received by the association not from assessments, disciplinary actions, collection activities, or member payment plans, any person’s personal information (e.g. social security numbers, credit card number’s, bank information, etc.), or “[m]inutes and other information from executive sessions of the board” (Civ. Code 5215(a)(5)(A)-(D).)
While the right to privacy is not absolute, courts balance the interests of each side in obtaining or protecting the information, consider the purpose of the information sought, the effect the disclosure will have on the parties, the nature of the objections, and the availability of alternative, less intrusive means for obtaining the requested information. (Hooser v. Sup. Ct. (2000), 84 Cal. App. 4th 997, 1005.) The more sensitive the nature of the personal information sought, the greater the showing of need required before disclosure will be permitted. (Hooser, 84 Cal. App. 4th at 1004.)
Recorded Meetings. Boards should not record their executive sessions (or should dispose of the recordings once minutes have been prepared). Electronic recordings may be subject to subpoena in future litigation. If the board has recorded their meetings and reasonably believes those recordings will be subpoenaed in a pending legal action, the recordings must be preserved.
Recommendation: Boards should make sure their executive session minutes are accurate and appropriate since they could, at some point, be read aloud in open court. In addition, litigation discovery is complicated and associations should work closely with their litigation counsel regarding any document requests made in a lawsuit.
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