August 29, 2016 Articles

Admitting Emails under Rule 803(6) Is No Slam Dunk

Evaluating for compliance and laying testimonial foundation are necessary to ensure successful admission of the evidence

by Kirsten R. Fraser

Federal Rule of Evidence 803(6), the so-called “business records exception,” is frequently used in business and commercial litigation to admit company emails for the truth of the matter asserted therein. The proliferation of electronically stored information (ESI) in the form of email and other electronic records has greatly increased the volume of discoverable evidence available to litigants. Indeed, in an era in which most businesses use email as a primary form of communication, emails often take center stage in disputes. But, admitting emails under Rule 803(6) is no slam dunk. The rule contains several conditions that must be met to qualify for the exception—and despite email’s pervasive use in business, courts are not relaxing those conditions. 

Under Rule 803(6), “records of a regularly conducted activity” are excluded from the rule against hearsay if: (1) the record was made contemporaneously by someone with knowledge; (2) the record was kept in the course of a regularly conducted activity of the business; (3) it was the business’s regular practice to make the record; (4) the foregoing conditions are established by the testimony of a custodian or other qualified witness, or by certification that complies with Rule 902(11) or (12) or another statute permitting certification; and (5) the source of information or the method or circumstances of the record’s preparation do not indicate a lack of trustworthiness. 

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