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Advice for Young Lawyers: E-Mail Authentication & Hearsay Exceptions

Many thanks to Beatrice O'Donnell and Thomas A. Lincoln for so thoroughly covering the email authentication and hearsay exception waterfront in Law.com today.

This is a question I get a lot from my NITA Depo and Trial Skills students.  This is a much more sophisticated answer than I've ever given so NITA STUDENTS HEAD'S UP on this one.

Here's an except with a link to the article, Authenticating Email Discovery as Evidence.

Just because I've become a Jedi negotiator does not mean I do not continue to love the adversarial process -- and I'm just geeky enough for evidence to have been my favorite class (and highest law school grade).  Thanks Professor Wydick.  

ESTABLISHING EMAIL AUTHENTICITY UNDER THE FEDERAL RULES OF EVIDENCE

The bar for establishing authenticity is not high under Federal Rule of Evidence 901. In the 3rd U.S. Circuit Court of Appeals, a court need only be able to legitimately infer that a document is genuine to find it to be "authentic." . . .

Some e-mails can be self-authenticated under Rule 902(7). Business labels, including signature blocks, that evidence the company from which an e-mail was sent, or even the name of a company in an e-mail address, might be sufficient proof of authenticity on their own.

Other circumstances, such as the distinctive characteristics of an author's e-mail address or the subject matter and style of the e-mail itself, may also be sufficient to establish authenticity.

BE PREPARED TO AUTHENTICATE EVERY STEP IN THE EMAIL CHAIN

An e-mail often has attached to it the e-mail or series of e-mails to which it is responding, creating an e-mail "chain," also known as a "string" or "thread." Some courts have found that each e-mail in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain. 

THE HEARSAY EXCEPTION IN EMAIL EVIDENCE 

The second major hurdle for getting an e-mail into evidence is the hearsay rule. By definition, hearsay is an out-of-court statement "offered in evidence to prove the matter asserted." The first way, therefore, to overcome a hearsay challenge to the admission of an e-mail is to claim that it's not hearsay at all.

An e-mail that is an admission by a party-opponent is "not hearsay." If your opponent is an individual, this is a simple test. In the corporate setting, however, damaging admissions may be authored by lower-level employees who do not have the authority to be making such statements. In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority.

Party-opponent admissions would also include statements by "a party's agent" concerning matters within the scope of the agency, i.e., "vicarious admissions." In addition, if your opponent's e-mails contain statements of others without reservation, e.g., when a party forwarded e-mails received from others, the e-mails may be introduced in evidence as "adoptive admissions" . . . This kind of statement has indicia of reliability because "the party has manifested an adoption or belief in its truth."

IT AIN'T AS EASY AS YOU THINK:  APPLYING THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Many practitioners would consider e-mails as classic examples of business records for corporate entities that routinely use e-mail for both internal and external communication. Under Federal Rule of Evidence 803(6), however, only "if it was the regular practice of that business activity" to make that record can a document come into evidence under the exception.

An e-mail might fit this "business records" exception if the company -- not just the individual, but the company itself -- has a reliable practice of sending, receiving and storing that kind of e-mail. A company might have that kind of practice if it takes and records purchase orders via e-mail. Notably, an e-mail that fits into the "business records" exception may also be self-authenticating, under Rule 902(11), if its authenticity is supported by an affidavit.

Many e-mails, however, do not meet the "business records" exception because they are merely chatter, statements that are made casually and not as a matter of obligation or even routine. An e-mail sent at an employee's sole discretion is not likely to have the necessary indicia of reliability and trustworthiness to be admitted as a "business record."

If an employee sends off a quick e-mail to a colleague commenting on the substance of a meeting with a business partner, it may not be admissible. By contrast, minutes of the same meeting kept by the same employee and circulated to all in attendance, in e-mail form, at the request of management could qualify under the "business records" exception.

Although there is not yet a well-established line of cases on this issue, courts appear concerned that if they allow e-mails into evidence as "business records" too easily, people will begin to use the convenience of e-mails to write self-serving internal communications.

AND HOW ABOUT THOSE BLACKBERRY COMMUNICATIONS?

With the advent of handheld devices as well as the ubiquity of laptop computers, e-mails may actually be admitted into evidence on the basis of "present sense impressions," or even as "excited utterances," as in Lorraine. People are often using e-mail to comment on events as they are transpiring, even during meetings.

If one can show that an e-mail was written while perceiving an event or immediately thereafter, or while under the stress caused by a startling event, it might meet the "present sense impression" or "excited utterance" standards of rules 803(1) and 803(2).

Of course, these standards are difficult to meet because contemporaneousness or near-immediacy is necessary. An e-mail might still meet the "present sense impression" standard if written 10 minutes after an event, but many e-mails are written hours or days later. 

The special problems posed by e-mails do not change the rules of impeachment. A lawyer's ability to cross-examine a witness with a prior inconsistent statement does not change merely because the statement is contained in an e-mail.

AND FOR THE UNDER 30 SET:  TEXT MESSAGES!

Text messages, instant messaging, chat rooms or "team rooms" (in which all materials concerning a project are preserved electronically for the entire project team to access) all present unique evidentiary challenges.

Practitioners need to be proactive in their efforts to ensure that key pieces of evidence can be admitted at trial. From the time of the initial review of documents through discovery, lawyers need to focus on how to get in or keep out such evidence.

Beatrice O’Donnell is a senior partner in the trial practice group of Duane Morris. She practices in the areas of product and professional liability, as well as commercial and insurance litigation. O’Donnell has tried to verdict more than 80 major civil jury trials in both state and federal courts, and has tried hundreds of arbitrations and mediations. She has been both national and regional coordinating counsel for a number of pharmaceutical and other clients facing mass tort litigation. Thomas A. Lincoln is an associate with the trial practice group of the firm.

Thomas A. Lincoln practices in the areas of products liability, consumer fraud, and commercial litigation, including complex litigation such as multidistrict litigation proceedings and class actions, representing both defendants and plaintiffs. Mr. Lincoln is admitted to practice in Pennsylvania. He is a 1999 graduate of New York University School of Law and a graduate, with honors, of Swarthmore College

Comments (2)

Read through and enter the discussion by using the form at the end
Dana Rogers - October 16, 2008 12:48 AM

Hello my name is Dana Rogers and I am a grade 12 student. I am trying to decide which degree to take in university before I begin my law degree. I was hoping you could give me some information on which degree you took and the right path. I was hoping to go for a bachelor of arts degree as I think I would be more likely to excell in the arts rather than science and math. But would a business degree be more beneficial? If you could get back to me with some feedback that would be greatly appreciated.

Thankyou

Vickie Pynchon - October 16, 2008 11:42 AM

Dana,

Follow your passion when choosing a major. As long as it requires you to think critically; read deeply; and WRITE coherently, you will be well-prepared for law school. I was a Literature major myself after struggling with advice (way back in the 70's) that I should go to business school. I didn't WANT to go to business school and actually dropped out for a year as I struggled with the issue of why I was going to university in the first place. I finally settled on pursuing that which I loved, believing that my own unique life would flow more coherently if I began my adult life being true to myself. So I re-enrolled without giving any thought whatsoever to what I'd do after college (the law wasn't much of a choice for women at the time). So much of life is kismet. Gary Trudeau, the Doonesbury cartoonist, was sending his character "Joanie Caucus" to law school while I was in my third year of university. I thought, "why not." It was a random decision (if anything we decide could ever truly be called random, coming as such decisions do, from the center of our experience of ourselves as well as a vision of who we COULD be). I did extremely well in law school (to my surprise) and my Lit major was a major benefit (to my surprise). Pick a major but then take a few classes in other majors if you remain undecided. Only by taking these courses can you truly decide whether you enjoy them. Work, particularly legal work, is far too consuming and challenging as a life's pursuit to do it for anything other than the love of it. The money follows, of course, as do friends and colleagues who are more or less motivated by the same goals and desires. Consult your heart. Be adventuresome. Remember that what you don't know now and who you are not yet will change as you mature and learn. Believe in yourself and your own passions. And best of luck to you.

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