Email vs. a Letter?

Admissibility of electronic documents (E-mail)

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In December 2006 the Federal Rules of Evidence were updated. As such there have been several decisions about the admissibility of electronic evidence as of late. The most thorough was done recently by Chief Magistrate Paul Grimm, in the US District Court of Maryland. This published ruling, Lorraine v. Markel has become the national benchmark for if you can admit e-mail and other electronic documents into evidence either at trial or in support of a motion of summary judgment.

The full document is here in all it's 101 pages: http://www.mdd.uscourts.gov/Opinions...%20OPINION.pdf

CM Grimm goes into detail over all types of electronic documents in his lengthy ruling but I will sum up here what steps you have to pass to admit e-mail into evidence. I'll not get into other electronic documents in this post -- maybe later since there's a lot of meat on the subject of computer records such as billing statements produced by creditors. This list is not totally inclusive and represents just the bare minimums you have to achieve to use e-mail in court. We went over about 20 additional special scenarios in my Civil Procedure class last month that go beyond this analysis but that's too much to go into detail here.

You have to pass five "hurdles" each with sub requirements. Each hurdle is progressively more of a burden to get past. Fail at at one of these hurdles (in bold) and the e-mail is NOT admissible in court under the Rules of Evidence:

Is the e-mail relavent? FR 401

* Does the e-mail have "any tendancy" to prove or disprove a consequential fact in the litigation? No - Inadmissible
* Can you articulate all reasons why you think the e-mail is relavent? Each reason can be challenged. If all reasons fail challenge, Inadmissible


Is the e-mail authentic? FR 901a
Any one of the following must be yes:

*Do you have testimony from a person with personal knowledge of the e-mail?
*Do you have expert testimony based on comparison of the e-mail to another already authenticated e-mail?
*Is there a trade inscription in the e-mail?
*Is the e-mail a certified copy of a business record?
*Are there distinctive characteristics of the e-mail that prove it is authentic (this is circumstantial)?

In addition to the above you must have proof of the accuracy of the e-mail, if challenged. If any of these are answered No, the e-mail is inadmissible:
*Do you have testimony of a witness as to the integrity of the e-mail system that originated the e-mail?
1. Is the system reliable?
2. Are there built-in safeguards to ensure the accuracy of the data stored?
3. Is the system kept in good repair?
4. Was the system in working order when the e-mail was sent?
*Do you have testimony of a witness as to the security of the e-mail system that originated the e-mail?
1. Are there security controls in place to prevent unauthorized use of a system account?
2. Are there security controls in place to prevent alteration of the original documents stored on the e-mail system?


Is the e-mail excluded by the hearsay rule? FR 801-807
*Is the e-mail a statement (intended to be an assertion) and was it sent by a real person? Yes - hearsay, inadmissible
*Is the e-mail being offered as substantial proof of its own truth? Yes - hearsay, inadmissible
*Is the e-mail offered to prove creation of a contract? Yes - NOT hearsay, admissible
*Is the e-mail being submitted as evidence by the person who created it? Yes - NOT hearsay, it's an admission. Only the portion created by the submitting author is admissible; replies by others are not.
*Is the e-mail subject to an exception? Yes - NOT hearsay, admissible
1. Present sense impressions (description of events unfolding as they are recorded such as typing a phone log while on the phone call)
2. Excited utterance
3. Illustrating exisiting state of mind
4. Medical diagnosis/treatment
5. Past recollection recorded
6. Business records
7. Public records
8. Vital statistic records
9. Religious organization records
10. Certificates of marriage/baptism or related events.
11. Family records, historical
12. Records reflecting an interest in property (like a Deed)
13. Ancient documents
14. Learned treatises (only with expert testimony accompanied).
15. Criminal judgments
16. Certain civil judgments
17. Reputation records, personal/family history (a credit report is a good example)
18. Reputation regarding custom or use of land
19. Historically significant facts
20. Reputation in the community


Is the e-mail an "original writing"? FR 1001-1008
"Original writing" includes copies unless the copy or it's original's accuracy is challenged.

*Is the content of the e-mail disputed? If so, is the e-mail in the form of "best evidence" available? If disputed and not best evidence, inadmissible Note: objections to best evidence not stated in trial are waived on appeal.
*Is the original available, even if in hands of the opponent? Yes - inadmissible unless opponet fails to produce original in discovery, secondary evidence may be required
*Is secondary evidence available such as the author's testimony, prior drafts, witnesses that read the original? No - may be inadmissible under objection


Does the e-mail create unfair prejudice? FR 403

*Does the e-mail induce a decision based on purely emotional grounds? Yes - inadmissible
*Does the e-mail confuse any issues of fact in the litigation? Yes - inadmissble
*Is the e-mail misleading or appears misleading? Yes - inadmissbile
*Is the e-mail of little exculpatory value (cumulative, repetitive) or a waste of time? Yes - inadmissible


Now this is the part I have to be VERY clear on. It is possible to get e-mail or other electronic documents admitted into evidence outside of this checklist. Some of the steps above require the opposing counsel to object or take some action. If you do manage to do so outside this checklist you are one of the lucky few or faced off against an opponent that doesn't know how to fend off production of documents very well. Also, keep in mind you may be lucky enough to win at trial and then get overturned on appeal if the appellate court determines that the trial court failed to follow the Rules of Evidence.

One last note. If you are a pro-se litigant (in court without a lawyer) you cannot authenticate your Electronically Stored Information (ESI) document production on your own word alone. Officers of the court (lawyers, police, etc) can and their testimony of what they witness is prima facie true by way of their oath of office to uphold the law. As a pro-se you don't get that consideration. If all you have is your own word that an e-mail is authentic, you will need to start looking for supporting testimony or secondary evidence.