Trial Evidence of E-Messages Made Simple
Jeffrey L. Dashevsky, Esq. on 2/6/2009
About The Author
Dashevsky, Horwitz, Kuhn & Novello, P.C.
As a trial attorney practicing in the new age of e-discovery, it has become apparent to me that an understanding of the Rules of Civil Procedure is more valuable than technical computer knowledge. While I can almost hear the collective sigh of relief from the over-50 year old members of the Bar, the newest members of our Bar embrace technology and welcome e-discovery and the idea that all litigators, civil and criminal, must grasp a workable knowledge of computer forensics. However, I reassure you that a complex understanding of technology is not needed to conduct e-discovery effectively. The only real difference between electronic evidence and paper evidence is their storage location: one is found on computers, on discs and network back-up tapes, while the other is found in a filing cabinet.
After the “e-data” has been exchanged and reviewed in accordance with the recent Amendments to the Federal Rules of Civil Procedure, or in accordance with similar local County and State Civil Procedure Rules, the “e-discovery” will need to be converted into “e-evidence” for the purpose of trial. However, trial attorneys must consider the issues of “authentication” and “hearsay” before trial in order to eliminate any serious hindrances to admission of the evidence. Case-in-Point:
Adam is excited that he was invited by his team leader, Gail, to sit in on the closed-door board meeting concerning the marketing of the company’s newest wonder drug – especially since he is an entry-level employee who was only recently hired three months ago. During the meeting, Adam and Gail send a flurry of e-mails, text messages and IM’s (Instant Messages) to each other on their company-issued wireless Boysenberry devices. They give each other their respective impressions and commentary about the information they learn of at the meeting. Gail ceases to respond to Adam’s last e-message which shockingly commented that their company is engaging in a corporate conspiracy to cover up a number of deaths which occurred during human clinical trials of their soon-to-be marketed wonder drug, which test cases’ deaths were conveniently attributed to unrelated causes.
Adam’s e-signature blocks on his e-messages only contained his first name. Gail’s signature blocks, though, contained both her name and the full name of their employer, including their corporate logo. Inadvertently, Gail was “blind cc-ing” all of her former college sorority sisters on the string of e-messages. Years later, lawsuits over deaths of individuals who subsequently took the medication arrive in court along with the string of electronic messages which will no doubt raise evidentiary issues.
The authentication issue can be explained rather simply. Metadata (e.g., information about the creation of the electronic document) will often indicate when and where a document was created, but it does not necessarily indicate who generated that data (who actually typed it in). Federal Rule of Evidence 901 provides guidance on how to authenticate electronic evidence. In the 3rd U.S. Circuit Court of Appeals, the Court need only be able to legitimately infer that a document is genuine to find it to be “authentic”. Generally, under this Rule, testimony describing the process by which the computer evidence is generated and how the process produces accurate results should suffice. Gail’s e-messages which included her signature block and the corporate name and logo might be sufficient proof of authenticity on their own. However, the e-messages were continuously attached to the responsive e-messages creating a “string” (also called a “thread” or “chain”). Be aware that some courts will find that each e-message in a string is a separate communication, subject to separate authentication and admissibility requirements. Though, Adam’s e-messages didn’t include any identifiable information, the distinctive characteristics of his e-message address or the subject matter and style of the e-message itself, may prove to be sufficient to establish authenticity.
The second central challenge for getting an e-message into evidence would be the Hearsay Rule. Obviously, the initial strategy to overcome the challenge will be to claim that the e-message is actually not hearsay at all. An e-message that is an admission by a party-opponent is “not hearsay”. Of course, if you’re opponent is simply an individual, this is an easy test. However, in the corporate setting, damaging admissions may be authored by lower-level employees, like Adam, who do not have the authority to be making such statements. In order for the e-message to qualify as a party admission, the author needs not only to be acting in the scope of their employment, but also to have the proper authority. These admissions would also include statements by a “party’s agent”, concerning matters within the scope of the agency, i.e., “vicarious admissions”. Also, Gail’s e-messages which were inadvertently forwarded to her college sorority sisters which contained Adam’s statements, without reservation, may be introduce in evidence as “adoptive admissions”. These kinds of statements have an indicia of reliability because “the party is manifested in adoption or belief of its truth.”
Many practitioners would consider Adam and Gail’s e-messages as classic examples of business records for corporate entities that routinely use e-messaging for both internal and external communications. However, under both Federal Rule of Evidence and Pennsylvania Rule of Evidence 803(6), only “if it was the regular practice of that business activity” to make that record can a document come into evidence under the exception. An e-message might fit this “business records” exception if the company itself has a reliable practice of sending, receiving and storing that kind of e-message (i.e. if the company takes and records purchase orders via e-mail). Notably, an e-message that fits into the “business records” exception may also be self-authenticating, under both Federal and Pennsylvania Rules of Evidence 902(11), if its authenticity is supported by an affidavit. Many messages, however, do not meet the “business records” exception because they are considered merely casual statements, or chatter, and not as a matter of obligation or even routine. An e-message sent at an employee’s sole discretion is not likely to have the necessary indicia of reliability and trustworthiness to be admitted as a “business record”, as is most likely the case in Adam and Gail’s situation. However, contrast Adam and Gail’s quick e-messages commenting on the substance of the board meeting with official minutes of the same meeting kept by Gail in her official capacity as Secretary of the Corporation and circulated by her to all in attendance, in e-mail form, at the request of management, which could qualify under the “business records” exception.
Note, it may be possible that Adam and Gail’s e-messages may be admitted into evidence on the basis of “present sense impressions”, or even as “excited utterances”, as they were using e-mail and text messages to comment on events as they were transpiring during the actual meeting. If it can be proved that Adam’s e-message was written while perceiving the event of the meeting (or immediately thereafter, or while under the stress caused by startling information), it might meet the “present sense impression” or “excited utterance” standards of the Federal and Pennsylvania Rules of Evidence 803(1) and 803(2), because the contemporaneousness or near-mediacy of the e-message.
Although cases on these issues are still in their infancy stage, there does appear to be a concern by the Courts that if they too easily allow e-messages into evidence as “business records”, crafty people will begin to use e-messaging to write self-serving internal communications. Of course, the trial lawyer’s ability to cross-examine a witness in order to attempt to impeach their testimony does not change, merely because the statement was contained in an e-message.
- Jeffrey L. Dashevsky, Esquire, is a Trial Attorney with the Law Firm of Dashevsky, Horwitz, Kuhn&Novello, P.C., practicing Plaintiff’s Personal Injury. He has a Masters (LL.M.) Degree in Trial Advocacy.
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