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    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. 

    In 2013, the Fourth Circuit considered emails that had been admitted under Rule 803(6) in United States v. Cone, 714 F.3d 197 (4th Cir. 2013), a criminal case. In Cone, the trial court had admitted emails for a nonhearsay purpose, but declined to give the jury a limiting instruction to that effect, stating the jury would decide “if they’re believable or not.” Id. at 219. The government argued that the emails were admissible under Rule 803(6). The Fourth Circuit disagreed. “While properly authenticated e-mails may be admitted into evidence under the business records exception, it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails,then ergo all those e-mails are business records falling within the ambit of Rule 803(6)(B).” Id. at 220. Because there was no foundation for the district court’s observation that the emails in this case were kept as a “regular operation of the business,” the Fourth Circuit found the emails were not admissible under Rule 803(6). Id. (finding that the lower court erred in failing to give a limiting instruction, but finding that error to be harmless). 

    In the years following this ruling, district courts across the nation have been following suit. In Brown v. West Corp., No. 8:11CV284, 2014 U.S. Dist. LEXIS 62476, at *7 (D. Neb. May 6, 2014), a civil case, the U.S. District Court for the District of Nebraska rejected the argument that emails among the defendant’s employees “fall under a per se exception to the hearsay rule as business records.” Instead the court held that “each email must be analyzed to determine whether it meets the elements of the business record exception and whether any additional statements within the emails require a separate exception.” Id. 

    Likewise, the Southern District of Georgia ruled in Candy Craft Creations, LLC v. Gartner, No. 2:12-cv-91, 2015 U.S. Dist. LEXIS 148165, at *2–8 (S.D. Ga. Nov. 2, 2015), that certain emails consisting of customer complaints to the plaintiff’s representatives did not fall under the business records exception, and were thus not admissible for the truth asserted therein. First, the court noted that for the exception to apply “all persons involved in the process must be acting in the regular course of business—otherwise, an essential link in the trustworthiness chain is missing.” Id. at *4 (quoting T. Harris Young & Assocs., Inc. v. Marquette Elecs., Inc., 931 F.2d 816, 828 (11th Cir. 1991)). Second, the court noted that “merely because a party’s employee regularly receives and sends e-mails does not equate to a finding that all such e-mails fall within the business records exception to the hearsay rule.” Id. at *6. Ultimately, the court found that the defendants could not establish that the customers who created the complaints were acting within the scope of any regularly conducted business activity. That fact combined with a lack of sufficient assurances of the reliability of the complaints led the court to exclude the emails for the truth of the matter asserted therein. Id. at *7–8. 

    This year, the Eastern District of Pennsylvania similarly considered whether emails proffered by the plaintiff met the business records exception in Roberts Technology Group, Inc. v. Curwood, Inc., No. 14-5677, 2016 U.S. Dist. LEXIS 64538 (E.D. Pa. May 17, 2016). The court observed that while there was no “absolute bar to emails being admissible” under Rule 803(6), there was no “absolute right to admission of emails under the business records exception.” Id. at *4. Though email use is ubiquitous in business, “[u]nder any medium, a party must provide specific foundational evidence allowing the Court to find the statements to be trustworthy.” Id. at *5 (emphasis added). In this case, the court found that the plaintiff had failed to provide “specific evidence” demonstrating the emails qualified as business records because there was no evidence that the emails were regular business records, were received by the plaintiff as part of its normal business practices, or had been retained pursuant to an email or electronic data policy. Id. at *6. 

    These cases demonstrate the importance of: (1) critically evaluating the content of emails before raising the business records exception, and (2) providing foundational testimony through proper testimony at trial. For example, to avoid the result of Candy Craft Creations, counsel should pay close attention to the sender and recipients of the emails—if they were sent by an outsider it will be difficult to prove the email meets the conditions of Rule 803(6). Then at trial, to avoid the result in Roberts Technology Group, ensure a proper witness can testify to the various conditions required by Rule 803(6): that the email was kept in the ordinary course of a regularly conducted business activity—perhaps through evidence of a records retention policy—and that it is a regular practice of the business to create the email or communicate by email. Taking the time to evaluate each email for compliance with the Rule 803(6) conditions and laying testimonial foundation for those conditions may seem onerous, but given recent decisions, these steps are absolutely necessary to ensure successful admission of evidence to the court. 

    Keywords: litigation, trial evidence, Rule 803, hearsay, business records exception 

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