Admissibility of E-Mails: Getting Them in and Keeping Them Out

PENNSYLVANIA AW WEEKLY L Monday, June 11, 2007 E-EVIDENCEE-EVIDENCE Admissibility of E-mails: Getting Them In and Keeping Them Out

BY BEATRICE O’DONNELL an e-mail to edit the message being forwarded. AND THOMAS A. LINCOLN Such alteration would not be discernible to the Special to the Legal, PLW recipient. E-mails are also more prone to a kind of hearsay-within-hearsay problem: an “e-mail O’DONNELL LINCOLN ith the recent passage of the chain” attaches to an e-mail every e-mail that BEATRICE O’DONNELL is a senior partner amendments to the Federal Rules came before it in a discussion. It is not enough in the trial practice group of Duane Morris. She prac- W of Civil Procedure, the legal press to get the most recent e-mail into evidence tices in the areas of product and professional liability, has been filled with articles containing e-discov- when that e-mail attaches a string of previous e- as well as commercial and insurance litigation. ery advice. At some point, “e-discovery” will mails. All of the prior e-mails may need to be O’Donnell has tried to verdict more than 80 major civil need to be converted into “e-evidence” for the separately authenticated and found admissible. jury trials in both state and federal courts, and has purposes of summary judgment or trial. Faced Given the dramatic shift toward the use of e- tried hundreds of arbitrations and mediations. She has with having spent your clients’ time and money mails in business communications, courts and been both national and regional coordinating counsel for a number of pharmaceutical and other clients facing to both produce e-discovery and mine your practitioners are likely to encounter issues of e- mass tort litigation. opponents’ e-discovery to find the “smoking mail evidence more frequently than in the past. THOMAS A. LINCOLN is an associate with gun,” it is critical to ensure you can get those e- Are e-mails so different from traditional written the trial practice group of the firm. mails into evidence — or keep them out. documents that the rules of evidence are out of Many practitioners think that e-mails are like date? We think that there are practical ways to have excluded e-mails at the time of dispositive business letters and will be admitted into evi- employ the rules of evidence to confront the motion — not because the e-mails were clearly dence just as easily. E-mails, however, may be special admissibility problems posed by e-mails. inauthentic, but because evidence was not sub- more prone to problems of authenticity and mitted to support their authenticity in the face AUTHENTICATION hearsay than traditional written documents. of a challenge. One such case is the Western People often write e-mails casually, dashing off In order to ensure that an e-mail will be District of Pennsylvania’s Bouriez v. Carnegie comments with an informality they would never admitted into evidence, a proper foundation for Mellon University. use with a letter. Little care is given to grammar its authenticity must be laid. Authentication is Similarly, a lawyer may need to depose a wit- and context. Their signature or even their name necessary not only at trial but also at the sum- ness to establish the authenticity of an e-mail, may be omitted. Authenticating an e-mail pres- mary judgment stage. Although challenges to based on the witness’ personal knowledge, or to ents issues not faced with a traditional letter the admissibility of evidence are not always have that witness available at trial. Stipulations with its formal letterhead, paragraph structure raised in response to summary judgment and requests for admissions can eliminate and signature block. motions, a lawyer should be prepared to submit authentication issues or narrow the scope of Additionally, e-mails are arguably more sus- evidence, in the form of affidavits, to support those e-mails that will be problematic. In feder- ceptible to after-the-fact alteration. Most e-mail the authenticity of any e-mail that he or she al court, the parties may choose at their Rule systems, for instance, allow a person forwarding intends to introduce. In several instances, courts 26(f) conference to agree to a process for stipu-

REPRINTED WITH PERMISSION OF THE PENNSYLVANIA LAW WEEKLY lating to the authenticity of e-mails each party do not have the authority to be making such cerned that if they allow e-mails into evidence produces during discovery to avoid unnecessary statements. In order for the e-mail to qualify as as “business records” too easily, people will expense. a party admission, the author needs not only to begin to use the convenience of e-mails to write The bar for establishing authenticity is not be acting in the scope of his or her employment self-serving internal communications. high under Federal Rule of Evidence 901. In the but also to have the proper authority. With the advent of handheld devices as well 3rd U.S. Circuit Court of Appeals, a court need Party-opponent admissions would also as the ubiquity of laptop computers, e-mails only be able to legitimately infer that a docu- include statements by “a party’s agent” con- may actually be admitted into evidence on the ment is genuine to find it to be “authentic.” cerning matters within the scope of the agency, basis of “present sense impressions,” or even as Deeper questions concerning trustworthiness i.e., “vicarious admissions.” In addition, if your “excited utterances,” as in Lorraine. People are might go to the weight of the evidence. In U.S. opponent’s e-mails contain statements of others often using e-mail to comment on events as v. Safavian, faced with a mountain of e-mails, the without reservation, e.g., when a party forward- they are transpiring, even during meetings. If court refused to require detailed authentication. ed e-mails received from others, the e-mails one can show that an e-mail was written while Some e-mails can be self-authenticated under may be introduced in evidence as “adoptive perceiving an event or immediately thereafter, Rule 902(7). Business labels, including signature admissions,” according to Safavian. This kind or while under the stress caused by a startling blocks, that evidence the company from which of statement has indicia of reliability because event, it might meet the “present sense impres- an e-mail was sent, or even the name of a com- “the party has manifested an adoption or belief sion” or “excited utterance” standards of rules pany in an e-mail address, might be sufficient in its truth.” 803(1) and 803(2). proof of authenticity on their own. Other cir- Another way to overcome a hearsay chal- Of course, these standards are difficult to cumstances, such as the distinctive characteris- lenge is to fit the e-mail into one of the excep- meet because contemporaneousness or near- tics of an author’s e-mail address or the subject tions to the hearsay rule. These exceptions are immediacy is necessary. An e-mail might still matter and style of the e-mail itself, may also be permitted because their context makes them meet the “present sense impression” standard if sufficient to establish authenticity. likely to be reliable. Many practitioners would written 10 minutes after an event, but many e- An e-mail often has attached to it the e-mail consider e-mails as classic examples of business mails are written hours or days later. or series of e-mails to which it is responding, records for corporate entities that routinely use Just as with authentication, one should be creating an e-mail “chain,” also known as a e-mail for both internal and external communi- prepared to argue for the admissibility, under “string” or “thread.” Some courts have found cation. Under Federal Rule of Evidence 803(6), the hearsay exceptions, of every e-mail in an e- that each e-mail in a chain is a separate com- however, only “if it was the regular practice of mail chain, as in New York v. Microsoft Corp. munication, subject to separate authentication that business activity” to make that record can a One should also be aware, as with authentica- and admissibility requirements. A lawyer document come into evidence under the excep- tion, that evidence that is clearly inadmissible at should thus be prepared to authenticate every tion. An e-mail might fit this “business records” trial cannot be considered by a court on sum- step of a chain. exception if the company — not just the indi- mary judgment. Although Rule 56 does not The Pennsylvania Superior Court, however, vidual, but the company itself — has a reliable require an unequivocal ruling that an e-mail has noted that uncertainties of authenticity for practice of sending, receiving and storing that will be admissible at trial for a court to consid- e-mails are the same as for traditional written kind of e-mail. A company might have that kind er it on summary judgment, one should be pre- documents: “A signature can be forged; a letter of practice if it takes and records purchase pared to support its admissibility with an affi- can be typed on another’s typewriter; distinct orders via e-mail. Notably, an e-mail that fits davit. letterhead stationary [sic] can be copied or into the “business records” exception may also The special problems posed by e-mails do stolen,” according to In re F. P. The court there- be self-authenticating, under Rule 902(11), if not change the rules of impeachment. A fore rejected the notion that e-mail is inherent- its authenticity is supported by an affidavit. lawyer’s ability to cross-examine a witness with ly more unreliable than traditional written doc- Many e-mails, however, do not meet the a prior inconsistent statement does not change uments, as well as the argument that e-mail “business records” exception because they are merely because the statement is contained in an cannot be properly authenticated within the merely chatter, statements that are made casu- e-mail. existing framework of Pennsylvania law. ally and not as a matter of obligation or even BE PROACTIVE routine. An e-mail sent at an employee’s sole HEARSAY discretion is not likely to have the necessary The admissibility problems related to e-mail The second major hurdle for getting an e- indicia of reliability and trustworthiness to be extend to other forms of electronically stored mail into evidence is the hearsay rule. By defi- admitted as a “business record.” If an employee information, too. Text messages, instant mes- nition, hearsay is an out-of-court statement sends off a quick e-mail to a colleague com- saging, chat rooms or “team rooms” (in which “offered in evidence to prove the matter assert- menting on the substance of a meeting with a all materials concerning a project are preserved ed.” The first way, therefore, to overcome a business partner, it may not be admissible. By electronically for the entire project team to hearsay challenge to the admission of an e-mail contrast, minutes of the same meeting kept by access) all present unique evidentiary chal- is to claim that it’s not hearsay at all. the same employee and circulated to all in lenges. Practitioners need to be proactive in An e-mail that is an admission by a party- attendance, in e-mail form, at the request of their efforts to insure that key pieces of evi- opponent is “not hearsay.” If your opponent is management could qualify under the “business dence can be admitted at trial. From the time of an individual, this is a simple test. In the corpo- records” exception. the initial review of documents through discov- rate setting, however, damaging admissions Although there is not yet a well-established ery, lawyers need to focus on how to get in or may be authored by lower-level employees who line of cases on this issue, courts appear con- keep out such evidence. •

REPRINTED WITH PERMISSION OF THE PENNSYLVANIA LAW WEEKLY