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.
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.
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.