Emails present special evidentiary problems when used in support of summary judgment or at trial. The problems presented--and the answers, too--are the topic of "Authenticating E-Mail Discovery as Evidence," by Beatrice O'Donnell And Thomas A. Lincoln. For any lawyer who deals with emails in discovery, it's well worth reading. Here are a few points:
- To authenticate an email, you must prove it is genuine. This must be done not only to make an email admissible at trial, but also in order to use an email in support of a motion for summary judgment.
- In federal court, some emails are self-authenticating under 902(7).
- If not, you'll need to use stipulations or requests for admissions to authenticate the email; failing that, you can find a witness who can authenticate the email.
- A second evidentiary hurdle is hearsay.
- If the email is an admission by a party-opponent, it's not hearsay.
- When the opposing party is a corporation, emails by lower-level employees might not be admissions. "In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority."
- Emails might fit within the business-record exception to the hearsay rule, but this might be difficult if the email is merely "chatter, statements that are made casually and not as a matter of obligation or even routine."
- In many courts, you will have to face the issue of authentication and hearsay with respect to each separate email in an email chain or thread.
There are more tips in the article. Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.