Upon Further Review

A Publication of the Philadelphia Bar Association

Home > Evidence

Print | | Share Stumble Upon Facebook Delicious Digg Reddit Google

Trial Evidence of E-Messages Made Simple

Jeffrey L. Dashevsky, Esq. on 2/6/2009

About The Author

image

Dashevsky, Horwitz, Kuhn & Novello, P.C.

Contact Jeffrey L. Dashevsky, Esq.

More by
Jeffrey L. Dashevsky, Esq. »

            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.

 

Print | | Share Stumble Upon Facebook Delicious Digg Reddit Google

+ Add CommentComments

  • 3/18/2009 by

    very good

  • 4/5/2009 by Ellen Dashevsky

  • 3/1/2010 by jack

    If you who lovehttp://www.bechristianlouboutin.com>cheap christian louboutinand want more of them, then you certainly will want to keep tabs on thehttp://www.bechristianlouboutin.com>cheap christian louboutin collection. The ethos and philosophy that is there behind these shoes is that all women have a right to win and look their very best.

  • 4/1/2010 by エアマックス 180

    LJH
    Air 180http://www.flyovermax.com">エアマックス 180のキリスト誕生日、イースターを記念したモデル。タンとインソールに卵からスウォッシュが誕生するロゴがデザインされています。
    オリジナルは1991年にリリースされ、純系AIR MAXhttp://www.flyovermax.com">エアマックス 通販とは別扱いのためMAXの名は付きませんでした。
    しかしながら、2003モデルに付属した小冊子やAir Max 360
    http://www.flyovermax.com/エアマックス360-c-81.html">air max 360 スニーカーのインソールプリントには純系MAXとしてその姿を連ねています。
    ヒールのマキシマム・ボリューム・エア底部のアウトソールをクリア素材にすることで180http://www.flyovermax.com">エアマックス 180度ビジブルとしたことからこの名が付いたそうです。
    フォアフット(前足部)には屈曲性を確保するためにグループの入ったエアバッグが封入されていますhttp://www.flyovermax.com">エアマックス 通販。

  • 2/20/2011 by Virgie

    Outstanding information and also very well written,

    Thank you very much for this,..

    http://www.squidoo.com/baja-ringan">Pemasangan rangka

  • 2/28/2011 by

    Do not like the fomat of this article, not used to it.
    http://www.chargerbuy.com/replacement-lenovo-ideapad-z565-ac-adapter-20v-4-5a.html">lenovo ideapad z565 ac adapter
    http://www.chargerbuy.com/replacement-lenovo-ideapad-z560-ac-adapter-20v-4-5a.html">lenovo ideapad z560 ac adapter

  • 11/10/2011 by tiffany jewellery uk

    I am totally agree with your oppinion.this blog post is very encouraging to people who want to know

    these topics.
    http://www.gooseca-shops.com
    http://www.tiffanycosales.co.uk
    http://www.casalegoose.com

  • 12/12/2011 by 1xuntong

    Because at the end of the palace is promised and princess tried, so I can only wear a http://www.miumiubag.net>prada small bags , comb the "two head" Bob, in order not to be poor, head wear on the left, the right wore , gold lotus leafhttp://www.miumiubag.net>prada purses outlet pin.

    I chose a http://www.miumiubag.net>prada on line , this one hairpin elaborately carved, exquisitely carved, in the bottom of the gold set with black and white on the two kinds of pearl, hairpin in different degree of copper wire of the head do Mosaic branches, with precious stones again make flowers in the bottom of the stamens, cause the drill hole, wear fine copper wire, the elastic of the spring into a, http://www.miumiubag.net>prada bags discount gently move, who place constantly. Make the eyes of tentacles, birds, plants must be leaves, branches of the image is clear, these figures are remarkably true. Wear it on the head, no doubt, will increase a JiaoTai beautiful appearance.

    Banyan/today a http://www.miumiubag.net>discount prada bags gold and silver silk tired wire embedded silver phoenix zan inserted in a bun with inclined, slightly was fair, especially the enchanting and moving, but decent do not break honour.

Add Comment

Newsletter Sign Up

Get the latest info delivered right to your inbox. Enter your email address below to subscribe.

Become a Contributor

You can submit your own articles to be considered for publication on Upon Further Review. LEARN MORE