DATELINE: April 2, 2008, Chicago
The all-hearing Stephanie Strom is at it again. She reports in today's New York Times that ACLU national is in a dispute with its South Carolina affiliate over access to recordings that were made of ACLU national's February 23, 2008 executive committee meeting. A.C.L.U. and State Branch Spar, Apr. 2, 2008. At that meeting, the 14-member executive committee was discussing the takeover by national of the South Carolina chapter.
David F. Kennison, the South Carolina chapter's representative on the national board, was unable to attend the executive committee meeting due to...
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heart problems. His request for a tape of the meeting has been denied by the ACLU board despite what Strom refers to as a "longstanding practice" of making the tapes available in these situations.
This little dust up raises a number of interesting issues. In the end, ACLU national is being both stubborn and stupid. They acknowledge that the tapes exist and that there is nothing inappropriate on the them. Moreover, they note that there could be litigation over any decisions involving the South Carolina chapter, meaning that the tapes likely will become part of any court record. Given those facts, ACLU national's recalcitrance accomplishes nothing positive and only serves to inflame any existing acrimony between it and the South Carolina chapter.
Several years ago, Strom wrote about the acquisition of document shredders by the ACLU. Some people were disturbed that the shredders would be used to destroy documents that should be retained. The ACLU should seek its own legal counsel, but we would strongly advise it not to shred (erase) the tapes of its executive committee meetings if they still exist. The fact that an ACLU spokesperson acknowledged the possibility of litigation with the South Carolina chapter suggests to us that the ACLU must instigate a litigation hold with respect to the tapes. The ACLU has a duty to preserve relevant evidence if litigation is foreseeable, or suffer the consequences of a charge that it engaged in spoliation of evidence. In the event of spoliation, a judge could impose costs of developing comparable evidence on the ACLU, instruct the jury that it can draw adverse inferences from the ACLU's behavior, or even direct the verdict against the ACLU.
We suspect Kennison would prevail if he were to sue the ACLU for release of the relevant tapes. As a board member, Kennison is charged with a duty of care and duty of loyalty. To exercise his duty of care, Kennison needs information. Unfortunately, most nonprofit corporation statutes say little about the director rights to information. However, when the issue has come before them, the courts have been sympathetic to directors who make reasonable requests for information. No court wants to impede a director who wants to adequately discharge his duties. Kennison is a particularly sympathetic character given the reasons he missed the meeting. Were he in Las Vegas hanging out with show girls we wouldn't be sympathetic, but this is a man who apparently had a major health problem.
According to Strom, the ACLU counters that the ACLU is concerned that the tapes will fall into the hands of a reporter with Big Ears, as was the case several years ago. We would remind both the ACLU and Kennison that director duties cut both ways. Not only does Kennison have a duty of care, but he also has a duty of loyalty, meaning that it would be inappropriate for Kennison to leak the tapes to a New York Times or Fox News reporter who had her Big Ears pressed against the speakers.
THE BIGGER LESSONS: Those charged with taking meeting minutes often ask whether they can tape the meeting for the purpose of using the tapes to make sure that the meeting minutes are accurate. Assuming such taping is legal—it probably is if all present consent—the more appropriate question is whether taping is a good idea. As a general proposition, we don't think it is. There are myriad of statutes and rules that require records to be maintained for set periods of time. Tape recordings may constitute records for purposes of those retention statutes, requiring the organization to retain those tapes for a specified period of time. Consequently, until an organization knows the status of those tapes under record retention statutes, it should not tape meetings. Assuming there is no legal requirement that the organization retain the tapes, if the person charged with taking the minutes elects to tape meetings to facilitate preparation of the minutes, that person should destroy the tapes once the minutes for a meeting are approved.
But the problem with this process is readily apparent from the predicament that the ACLU now finds itself in. Most board meetings don't result in litigation or the potential for it. On occasion, however, meetings end with lawsuits being filed. Once a lawsuit is threatened, filed, or foreseeable, destruction of the meeting tape becomes problematic. Unless a lawyer who is knowledgeable in the rules of evidence and document destruction affirmatively advises otherwise, the tape should not be destroyed. In certain cases, destruction could result in criminal prosecution.
Taping also could affect what directors are willing to say at meetings. Although there may be assurances that the tapes will be destroyed, some directors will inevitably be skeptical about this, particularly when issues are hotly contested or sensitive. Taping could therefore prove to be an impediment to open and frank exchanges of ideas. In most cases, that result is undesirable. Moreover, if the meeting is discussing a matter already subject to litigation (e.g., a lawsuit involving employment practices), the other side might file a discovery request if it suspects that the matter was discussed and taped.
On balance, unless a statute requires that board meetings be taped or gives participants the right to tape (some do), we would recommend against recording meetings no matter how mundane they might be.
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