Getting E-Mails Into Evidence: (Ind.) Federal Court Weighs In

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Since e-mail is the dominant form of business communication across the globe, it’s no surprise that it comprises a large chunk of the documents used as evidence at a business dispute trial.

Email’s prevalence in lawsuits makes it crucial for litigators to understand the key evidence authenticity and foundational rules that govern whether an email gets into evidence.  This is especially true where an email goes to the heart of a plaintiff’s claims (or defendant’s defenses) and the e-mail author or recipient denies the e-mail’s validity.

Finnegan v. Myers, 2015 WL 5252433 (N.D. Ind. 2015), serves as a recent example of a Federal court applying fundamental evidence rules to the e-mail communications context.

In the case, the plaintiffs, whose teenaged daughter died under suspicious circumstances, sued various Indiana child welfare agencies for lodging criminal child neglect charges against them that were eventually dropped.  The plaintiffs then filed Federal civil rights and various due process claims against the defendants.

The defendants moved for summary judgment and then sought to strike some of plaintiffs’ evidence opposing summary judgment.  A key piece of evidence relied on by the plaintiff in opposing summary judgment that the defendants sought to exclude as improper hearsay was an e-mail from a forensic pathologist to child welfare personnel that called into questions the results of a prior autopsy of the deceased.

Denying defendants’ two motions (the summary judgment motion and motion to strike), the Court provides a useful gloss on the operative evidence rules that control e-mail documents in litigation.

  • The Federal Rules of Evidence (FRE) require a proponent to produce evidence sufficient to support a finding the item is authentic – that it is what the proponent claims it to be;
  • FRE 901 recognizes several methods of authentication including witness testimony, expert or non-expert comparisons, distinctive characteristics, and public records, among others;
  • FRE 902 recognizes certain evidence as inherently trustworthy and “self-authenticating” (requiring no additional proof of authenticity).  Evidence in this camp includes public records, official publications, newspapers and periodicals, commercial paper, and certified domestic records of a regularly conducted activity;
  • Authentication only relates to the source of the documents – it does not mean that the documents’ contents are taken as true;
  • E-mails may be authenticated by circumstantial evidence such as (a) viewing the e-mail’s contents in light of the factual background of the case, (b) identifying the sender and receiver via affidavit, (c) identifying the sender by the e-mail address from which the e-mail was sent, (d) comparing the email’s substance to other evidence in the case, and (e) comparing the e-mail to other statements by the claimed author of a given email.

(** 5-6)

Applying these guideposts, the court found that the plaintiff sufficiently established that the subject email was genuine (i.e., it was what it purported to be) and that it was up to the jury to determine what probative value the email evidence had at trial.

The court also agreed with the plaintiff that the pathologist’s email wasn’t hearsay: it was not used for the truth of the email.  Instead, it was simply used to show that the State  agency was put on notice of a second autopsy and changes in the pathologist’s cause of death opinions.

Afterwords:

This case resonates with me since I’ve litigated cases in the past where a witness flatly denies sending an email even though it’s from an e-mail address associated with the witness.  In those situations. I’ve had to compile other evidence – like the recipient’s affidavit – and had to show the denied email is congruent with other evidence in the case to negate the denial.

Finnegan neatly melds FRE 901 and 902 and provides a succinct summary of what steps a litigator must take to establish the authenticity of e-mail evidence.

Bank’s Business Records and Supporting Affidavit Satisfy Evidence Rules – IL 2nd Dist.

Because they’re so integral to commercial litigation, business records and the myriad evidentiary concerns intertwined with them, are a perennial favorite topic of this blog.

In earlier posts (here and here, I’ve featured US Bank, NA v. Avdic, 2014 IL App (1st) 121759 and Bank of America v. Land, 2013 IL App (5th) 120283, two cases that examine the foundation and authenticity requirements for admitting business records in evidence and probe the interplay between Illinois Supreme Court Rule 236 and Illinois Evidence Rule 803(6).

We now can add Bayview Loan Servicing, LLC v. Szpara, 2015 IL App (2d) 140331 to the Illinois business records cannon.  Harmonized, Avdic, Land and Bayview form a trilogy of key business records cases that are useful (if not required) reading for any commercial litigator.

Bayview’s facts parallel those of so many other business records cases: a mortgage foreclosing plaintiff tries to offer business records into evidence at trial or as support for a summary judgment motion and the defendant opposes the records’ admission.

Bayview’s bank plaintiff tried to get damages in evidence via a prove-up affidavit signed by a bank Vice President who didn’t actually create the records in the first place.  The defendant moved to strike the affidavit as lacking foundation.

Affirming summary judgment for the bank, the First District provides a cogent summary of the governing standards for summary judgment affidavits that are employed to get business records into evidence.

First, the court affirmed dismissal of the defendant’s fraud in the inducement affirmative defense – premised on the claim that a mortgage broker allied with the plaintiff made false statements concerning the defendant’s creditworthiness and value of the underlying property.

Fraud in the inducement is a species of common law fraud.  A fraud plaintiff in Illinois must show (1) a false statement of material fact, (2) knowledge or belief that the statement is false, (3) intent to induce the plaintiff to act or refrain from acting on the statement, (4) the plaintiff reasonably relied on the false statement, and (5) damage to the plaintiff resulting from the reliance.  A colorable fraud claim must be specific with the plaintiff establishing the who, what, and when of the challenged statement.

The Court agreed with the trial court that the defendant’s fraud in the inducement defense was too vague and lacked the heightened specificity required under the law.  The defendant failed to sufficiently plead the misrepresentation and didn’t allege facts showing when the misstatement was made.  As a result, the defense was properly stricken on the bank’s motion. (¶¶ 34-35)

The court then found that the plaintiff’s business records – appended to a bank employee’s affidavit in support of the bank’s summary judgment motion –  were properly admitted into evidence and affirmed summary judgment for the bank.

Illinois Supreme Court Rule 236 and Illinois Evidence Rule 803(6)(“Records of Regularly Conducted Activity”) provide that a business record can be admitted into evidence as an exception to the hearsay rule if (1) the record was made in the regular course of business and (2) was made at or near the time of the events documented in the records.

In  the context of a prove-up affidavit based on business records, the affiant doesn’t have to be the one who personally prepared the record; it’s enough that the affiant has basic familiarity with the records and the business processes used by the party relying on them.

Under Evidence Rule 803(6), the lack of personal knowledge of someone signing an affidavit does not affect the admissibility of a given document, although it could affect the (evidentiary) weight given to that document.   (¶42).

The bank’s Vice President in Bayview testified in her prove-up affidavit that she had access to the business records relating to defendant’s loan, that she reviewed the records, had personal knowledge of how the plaintiff kept and prepared them and that the plaintiff’s regular practice was to keep loan records like the ones attached to the affidavit.

The court rejected the defendant’s argument that the affidavit was deficient since the bank agent wasn’t who created the attached loan records.  Citing to Avdic and Land, the Court found that, in the aggregate, the bank agent affidavit testimony sufficiently met the foundation and authenticity requirements to get the business records in evidence. (¶¶ 41-46)

Afterwords:

This case contains salutary discussion and rulings for plaintiff creditors as it streamlines the process of getting business records into evidence at the summary judgment stage and later, at trial.

Bayview reaffirms the key holdings from Avdic, Land and business records cases like them that an agent who had nothing to do with preparing underlying business records can still attest to the records’ validity and authenticity provided she can vouch for their validity and is familiar with the mode of the records’ creation.

Voluntary Payment of Wages Sinks Transit Agency’s Conversion Counterclaim Against Ex-Employees – IL ND

In Laba v. CTA, 2016 WL 147656 (N.D.Ill. 2016), the Court considers the contours of the conversion tort in a dispute involving former Chicago Transit Authority (CTA) employees who lied about their hours worked.

The CTA claimed the employees converted or “stole” paycheck monies by falsifying employee time records in order to get paid by the agency.

The Court dismissed the CTA’s conversion claim based on the involuntary payment doctrine.  Conversion applies where a plaintiff shows (1) a defendant exercised unauthorized control over the plaintiff’s personal property; (2) plaintiff’s right to immediate possession of the property; and (3) a demand for possession of the property.  

A colorable conversion claim must involve specifically identifiable property.  Money can be the subject of  a conversion claim but it must be a specific source of funds.  A general obligation (“John owes me money and so he basically stole from me,” e.g.) isn’t enough for actionable conversion.

A well-established conversion defense is the voluntary payment rule.  This rule posits that where one party voluntarily transfers property to another, even if the transfer is mistaken, there is no conversion.  In such a case, there is a debtor-creditor relationship: the debtor would be the person to whom the funds were paid and the creditor the paying party. 

Here, since the CTA voluntarily paid money to the employees, in the form of regular paychecks, those monies could not be subject to a later conversion suit.  The CTA did not pay the ex-workers under duress.  The fact that the workers may not have earned their pay doesn’t change the analysis.  At most, according to the court, the time sheet embellishments created a “general debt arising from fraudulent conduct.”  The CTA has a remedy to recoup the funds; it’s just not one for conversion. 

Afterwords:

This case presents a creative use of the conversion tort in an unorthodox fact setting.  The case lesson is clear: where an employer pays an employee of the employer’s own volition, the payment will be considered “voluntary” even where it turns out the employee didn’t deserve the payment (i.e. by not working).  In such a case, the employer’s appropriate remedy is one for breach of contract or unjust enrichment.  A civil conversion claim will not apply to voluntarily employer-employee payments.