1. consistent use of smart quotes vs. straight quotes
2. inconsistent use of emphasis
3. font (and font size) discrepancies within the document
4. inconsistent use of defined terms
5. use of punctuation next to a quotation
6. use of semicolons vs. colons within the same list
7. formatting of sections (e.g., variations in tabbing, or some sections which have descriptions and others which do not)
8. underlining the period in a section title
   
9. switching between the section symbol and the word "section"
10. spacing in citations
    

Admissibility Standards Differ Depending on Whether the Party is Moving for or Opposing SJ

The safe assumption is to treat summary judgment as trial and authenticate the emails to the extent you would at trial.  But this is often time-consuming.  Whether evidence at the summary judgment stage needs to satisfy the standard for trial admissibility depends on whether the evidence is offered by the moving party or the party resisting summary judgment.  A party resisting summary judgment need not rely on evidence in its trial-admissible form.  See, e.g., Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d 631, 645 (E.D. Pa. 2004). 

While a party resisting a summary judgment motion faces a more relaxed standard, I would resist the temptation to merely attach the emails to your declaration “as emails produced by X in the course of discovery.”  (A party resisting summary judgment could always throw in an argument under Rule 56 that the party has obtained the emails, but if given additional time would produce the authenticating declarations.  It’s not good to rely on this, but it can serve as a backstop.)

Third Party Emails vs. Opponent Emails

Documents produced by an opposing party in this particular litigation are much easier to rely on for summary judgment purposes than documents produced by a third party.  Courts typically, consider a document produced by an opponent in the course of the litigation without forcing the party seeking to rely on the document to jump through the authentication hoops. 

Admissibility v. Authenticity

The first step in seeking to admit an email as evidence is to separate authenticity from admissibility.  It’s easy to conflate the two, and authenticity is not something people always worry about at the summary judgment stage.  However, whether you are moving for summary judgment or opposing it, you need to present evidence that has been authenticated or evidence which is self-authenticating under the rules. 

Rule 901 sets forth general requirements of authentication and sets forth examples of authenticating testimony (e.g., a person with knowledge testifies that a document is what it purports to be).  Rule 902 describes so-called “self authenticating” documents, documents with respect to which there are intrinsically sufficient indicia of authenticity that they do not need to be separately authenticated.  An email will only typically qualify under one 902 exception, and that’s the business records exception.  902(11) which deals with “domestic records of regularly conducted activity,” cross-references the business records exception to the hearsay rule, and provides that to the extent a document would be admissible under the business records exception, authentication is not an issue.  The rule provides that the evidence must be “accompanied by a written declaration of its custodian or other qualified person” which testifies that the document constitutes a record of regularly conducted business (which is roughly what you would need to admit the evidence under the business records exception anyway). 

Unfortunately, the business records exception is not always applicable, although courts and practitioners have been somewhat lax in their application of this rule to emails.

Emails and the Business Records Exception

It’s worth keeping in mind – as one court recently admonished – that “[a]n e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule.”  Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 621 (S.D.N.Y. 2008).  The million dollar question is what exactly the record consists of. 

Think of it this way.  Imagine in a commercial dispute, you seek to admit emails produced by a third party which relate to the dispute.  The communications surround negotiations between two unrelated third parties (i.e., not involving your opponent).  In order to admit the emails, you would need a declaration from the third party that as a “regular practice” it engaged in negotiations via email, and maintained these emails as a regular practice.  Often this would not be a correct statement, and you may have difficulty admitting the emails on this basis.  At the other extreme, the types of emails which may clearly fit into this category would be confirmation emails, emails transmitting invoices which are typically transmitted in this manner, or emails which provide notice (again which are typically transmitted in this matter).  An email from Amazon or Orbitz confirming the purchase of a product or service would clearly fall in this category. 

Courts in the past have strictly construed the requirements of "ordinary course" and "regular practice," on the ground that this language was carefully considered by the drafters of the Rule, and the requirements are important guarantees of the trustworthiness of the record. See, e.g., Pierce v. Atchison T. & S.F. Ry., 110 F.3d 431 (7th Cir. 1997) (memorandum recording an "unusual" incident "was not created with the kind of regularity or routine which gives business records their inherent reliability").  Thus, ordinary email communications should not qualify for admission under the business records rule.  Will a business be able to certify that the type of communication in question was typically effected via email and the regular practice of the business was to record these communications in email?  Given the various ways that businesses communicate, unless the business has a set policy that states that certain types of communications should be conducted via email and those communications should be archived, ordinary, run of the mill communications should typically fall within the business records exception.  In Rambus, Inc. v. Infineon Techs. AG, the court refused to admit emails under the business records exception on this basis:

Additionally, in the Molex declaration, the declarant states that the Molex documents are all notes and memoranda that he took during committee meetings. The declarant states that it was his "regular practice" to take notes, and that they were "kept in the regular course," but not that it was the regular practice of Molex that he should take and keep such notes. This is an  important distinction, as noted in Robinson. The fact that an employee "routinely" takes meeting notes and keeps them, is quite different than whether a company policy directs the employee to do so.

Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698, 706 (E.D. Va. 2004).

Authentication in General

If the business records exception does not apply, you still need to authenticate emails which you intend to rely on in the summary judgment context.  What’s necessary here?  Here are a few issues to worry about:

• Do you need a declaration from the IT person/records custodian or a declaration from the author of the emails?
• Who are the emails being obtained from – are they forwarded from individual recipients and senders to the person gathering them, or are they accessed from a central location?
• Are the email addresses visible or obscured (how about other similar information - title/contact information)?
• Are the emails altered in any way?

United States v. Safavian (access a pdf version of an order discussing email evidence here) and DirecTV, Inc. v. Murray (D.S.C.) (access a pdf version of an order discussing email evidence here) both provide helpful roadmaps on these issues.  (See also the Post Process article linked below).

Hearsay

A final issue to consider is whether email causes hearsay problems in the first place.  It may be worth arguing that the email evidence does not constitute hearsay.  (Keep in mind you still need to satisfy authenticity requirements.)

First, hearsay comes into play when an out of court statement is being offered for the truth of the matter asserted.  At least a significant portion of the time, this is not the case.  You are typically not offering an email which states that “the light was yellow” to prove that the light was actually yellow.  You are offering email communications to prove that the communications actually took place – not for the truth of the matter underlying the communications. 

Second, it’s possible to argue that in some instances, an email falls under other exceptions to the hearsay rule, such as a present sense impression or an excited utterance.  Both of these exceptions are what their names imply, and at least one court has found that a follow up email to a meeting could be admissible on the basis that it constitutes a present sense impression.  Canatxx Gas Storage Ltd. v. Silverhawk Capital Ptnrs., LLC, 2008 U.S. Dist. LEXIS 37803 (S.D. Tex. May 8, 2008) (admitting email under present sense impression where testimony indicated that “the email was sent ‘[a]s soon as [the declarant] finished [his] conversation with [the recipient]’”).   This exception could also potentially be applicable to blackberry or twitter evidence.  See, e.g., here.

* * * * *

It's worth not waiting until the last minute to deal with authentication of emails (or I suppose, any evidence).  Email evidence requires a little thought.  You should think about how the evidence will be produced to you originally.  Consider making a request to the producing party to produce the emails a certain way. 

You should also consider getting an authenticating declaration at the time of production. 

Links

Post Process:  Case Blurb:  Lorraine; How to Authenticate E-mail (link)