Admissibility of electronic documents (E-mail)

[Methuss]

In December 2006 the Federal Rules of Evidence were updated. As such there have been several decisions about the admissibility of electronic evidence as of late. The most thorough was done recently by Chief Magistrate Paul Grimm, in the US District Court of Maryland. This published ruling, Lorraine v. Markel has become the national benchmark for if you can admit e-mail and other electronic documents into evidence either at trial or in support of a motion of summary judgment.

The full document is here in all it's 101 pages: http://www.mdd.uscourts.gov/Opinions152/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

CM Grimm goes into detail over all types of electronic documents in his lengthy ruling but I will sum up here what steps you have to pass to admit e-mail into evidence. I'll not get into other electronic documents in this post -- maybe later since there's a lot of meat on the subject of computer records such as billing statements produced by creditors. This list is not totally inclusive and represents just the bare minimums you have to achieve to use e-mail in court. We went over about 20 additional special scenarios in my Civil Procedure class last month that go beyond this analysis but that's too much to go into detail here.

You have to pass five "hurdles" each with sub requirements. Each hurdle is progressively more of a burden to get past. Fail at at one of these hurdles (in bold) and the e-mail is NOT admissible in court under the Rules of Evidence:

Is the e-mail relavent? FR 401

* Does the e-mail have "any tendancy" to prove or disprove a consequential fact in the litigation? No - Inadmissible
* Can you articulate all reasons why you think the e-mail is relavent? Each reason can be challenged. If all reasons fail challenge, Inadmissible


Is the e-mail authentic? FR 901a
Any one of the following must be yes:

*Do you have testimony from a person with personal knowledge of the e-mail?
*Do you have expert testimony based on comparison of the e-mail to another already authenticated e-mail?
*Is there a trade inscription in the e-mail?
*Is the e-mail a certified copy of a business record?
*Are there distinctive characteristics of the e-mail that prove it is authentic (this is circumstantial)?

In addition to the above you must have proof of the accuracy of the e-mail, if challenged. If any of these are answered No, the e-mail is inadmissible:
*Do you have testimony of a witness as to the integrity of the e-mail system that originated the e-mail?
1. Is the system reliable?
2. Are there built-in safeguards to ensure the accuracy of the data stored?
3. Is the system kept in good repair?
4. Was the system in working order when the e-mail was sent?
*Do you have testimony of a witness as to the security of the e-mail system that originated the e-mail?
1. Are there security controls in place to prevent unauthorized use of a system account?
2. Are there security controls in place to prevent alteration of the original documents stored on the e-mail system?


Is the e-mail excluded by the hearsay rule? FR 801-807
*Is the e-mail a statement (intended to be an assertion) and was it sent by a real person? Yes - hearsay, inadmissible
*Is the e-mail being offered as substantial proof of its own truth? Yes - hearsay, inadmissible
*Is the e-mail offered to prove creation of a contract? Yes - NOT hearsay, admissible
*Is the e-mail being submitted as evidence by the person who created it? Yes - NOT hearsay, it's an admission. Only the portion created by the submitting author is admissible; replies by others are not.
*Is the e-mail subject to an exception? Yes - NOT hearsay, admissible
1. Present sense impressions (description of events unfolding as they are recorded such as typing a phone log while on the phone call)
2. Excited utterance
3. Illustrating exisiting state of mind
4. Medical diagnosis/treatment
5. Past recollection recorded
6. Business records
7. Public records
8. Vital statistic records
9. Religious organization records
10. Certificates of marriage/baptism or related events.
11. Family records, historical
12. Records reflecting an interest in property (like a Deed)
13. Ancient documents
14. Learned treatises (only with expert testimony accompanied).
15. Criminal judgments
16. Certain civil judgments
17. Reputation records, personal/family history (a credit report is a good example)
18. Reputation regarding custom or use of land
19. Historically significant facts
20. Reputation in the community


Is the e-mail an "original writing"? FR 1001-1008
"Original writing" includes copies unless the copy or it's original's accuracy is challenged.

*Is the content of the e-mail disputed? If so, is the e-mail in the form of "best evidence" available? If disputed and not best evidence, inadmissible Note: objections to best evidence not stated in trial are waived on appeal.
*Is the original available, even if in hands of the opponent? Yes - inadmissible unless opponet fails to produce original in discovery, secondary evidence may be required
*Is secondary evidence available such as the author's testimony, prior drafts, witnesses that read the original? No - may be inadmissible under objection


Does the e-mail create unfair prejudice? FR 403

*Does the e-mail induce a decision based on purely emotional grounds? Yes - inadmissible
*Does the e-mail confuse any issues of fact in the litigation? Yes - inadmissble
*Is the e-mail misleading or appears misleading? Yes - inadmissbile
*Is the e-mail of little exculpatory value (cumulative, repetitive) or a waste of time? Yes - inadmissible


Now this is the part I have to be VERY clear on. It is possible to get e-mail or other electronic documents admitted into evidence outside of this checklist. Some of the steps above require the opposing counsel to object or take some action. If you do manage to do so outside this checklist you are one of the lucky few or faced off against an opponent that doesn't know how to fend off production of documents very well. Also, keep in mind you may be lucky enough to win at trial and then get overturned on appeal if the appellate court determines that the trial court failed to follow the Rules of Evidence.

One last note. If you are a pro-se litigant (in court without a lawyer) you cannot authenticate your Electronically Stored Information (ESI) document production on your own word alone. Officers of the court (lawyers, police, etc) can and their testimony of what they witness is prima facie true by way of their oath of office to uphold the law. As a pro-se you don't get that consideration. If all you have is your own word that an e-mail is authentic, you will need to start looking for supporting testimony or secondary evidence.


Whew that was long... xThudx

[nascar]

Lots of information here, but a caveat to remember when citing Federal Rules Decisions (F.R.D.) cases;


Principles of stare decisis do not require this Court to give any deference to decisions of another district judge. See 28 James Wm. Moore et al.; Moore's Federal Practice § 134.02[1][D] ("A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”) In re Oxford Health Plans, Inc., 191 F.R.D. 369 (S.D.N.Y., 2000).

This published ruling, Lorraine v. Markel has become the national benchmark for if you can admit e-mail and other electronic documents into evidence either at trial or in support of a motion of summary judgment.


National benchmark? Hmm, this is a new case and has not yet been cited by any other court and is not yet an official publication. (----- F.R.D. -----)

[Methuss]

I think you are missing the major point.

The Rules of Evidence are not flexible and they apply to all districts regardless of judicial opinion in one district or another. The Lorraine opinion is a step by step analysis of the Rules of Evidence and how they are required to be applied.

All CM Grimm did was take the relavent rules all courts must follow from the 1100+ individual rules and distill it down to a relatively straight forward set of steps to determine admissibility of electronic evidence. It's totally irrelavent if his opinion is cited elsewhere since a court in another district still has to follow the evidenciary rules the same way.

Every major law journal went nuts when this case was published with articles about how it affects the production of electronic documents (mostly because it closes the door on court errors allowing evidence that should not be admitted). All my professors had to update their curriculum to keep up with it. The Illinois Bar (and 20 other States as well) issued a memorandum on the subject to the membership. I fail to see how that doesn't constitute becoming a benchmark that should be expected at a national level...and that's how my professor labeled it in class.

[divemedic]

“To be relevant it is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence." see JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE §901.02[1] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 1997)

Once evidence has been shown to meet the low threshold of relevance, however, it presumptively is admissible unless the constitution, a statute, rule of evidence or procedure, or case law requires that it be excluded. Thus, the function of all the rules of evidence other than Rule 401 is to help determine whether evidence which in fact is relevant should nonetheless be excluded.

A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. This is not a particularly high barrier to overcome. For example, in United States v. Safavian, the court analyzed the admissibility of e-mail, noting, the question for the court under Rule 901 is whether the proponent of the evidence has ‘offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is . . . .’ The Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.

Although courts have recognized that authentication of ESI may require greater scrutiny than that required for the authentication of “hard copy” documents, they have been quick to reject calls to abandon the existing rules of evidence when doing so. For example, In Re F.P. , A Minor, the court addressed the authentication required to introduce transcripts of instant message conversations. In rejecting the defendant’s challenge to this evidence, it stated:
Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of PaR.E. 901 and Pennsylvania case law . . . We see no justification for constructing unique rules of admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.


The hearsay rule would not apply, as the affiant (the debtor) has personal knowledge of the content of the email.

Rule 403 would not apply here. An example of rule 403 applying to an email, would be if the email purported that the debt fixer liked clubbing baby seals, or that he had to go to a KKK meeting that evening. This would have the effect of creating an unfair prejudice in the mind of the jury. Obviously not the case here.

The case you cited above has several other portions, which you failed to mention:

1 Accordingly, “resolution of whether evidence is authentic calls for a factual determination by the jury and admissibility, therefore, is governed by the procedure set forth in Federal Rule of Evidence 104(b) ‘relating to matters of conditional relevance generally.’”

2 In essence, determining whether ESI is authentic, and therefore relevant, is a two step process. First, “before admitting evidence for consideration by the jury, the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” Then, “because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.”

3 To be relevant, evidence does not have to carry any particular weight — it is sufficient if it has “any tendency” to prove or disprove a consequential fact in the litigation.

As the Fourth Circuit summarized in United States v. Branch, 970 F.2d 1368 (4th Cir. 1992) (emphasis mine):
Although the district court is charged with making this preliminary determination, because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims. Because the ultimate resolution of authenticity is a question for the jury, in rendering its preliminary decision on whether the proponent of evidence has laid a sufficient foundation for admission the district court must necessarily
assess the adequacy of the showing made before the jury.


“To be relevant it is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence."

BTW, your contention that

All CM Grimm did was take the relavent rules all courts must follow from the 1100+ individual rules and distill it down to a relatively straight forward set of steps to determine admissibility of electronic evidence.

is precisely what courts do when they issue an opinion, whether the subject of that opinion is the FRE or the meaning of a statute. It is still a court's opinion, and the rules of stare decisis still apply.

(edited because the earlier post was too damned long)

[Methuss]

I did mention "any tendancy" of relavence.

I did, also, describe foundation, although not naming by that - so as not to add extra definitions laymen may not be familiar with. If the judge determines the foundation is lacking, the jury never considers it. The steps in the process above are the foundational steps.

Since the judge, not the jury, determines whether the foundational requirements have been met before a jury can decide, conditional relavency with the jury doesn't come into play until first getting past all these hurdles.

Not a failure to mention, but a matter of trying to keep it as simple as possible. Note I specifically said "This list is not totally inclusive and represents just the bare minimums you have to achieve to use e-mail in court." And all you did was point out additional circumstances above the bare minimums that could, but do not always, apply.

(edited because the earlier post was too damned long)
Yeah. I couldn't agree more with this. I'm actually suprised that Grimm got the whole matter down to 101 pages. It's a very complicated subject.

However I have to disagree about the presumption that stare decisis would limit this opinion's value. The suggestion that any other court would not have to follow the same process in applying the FRE as CM Grimm outlined just because he wrote the outline is somewhat silly. They surely don't have to use his opinion, but the rules of evidence still have to be applied...judges have discretion to decide what they will or will not allow, but if they make a procedural mistake, they will very likely be overturned if challenged on appeal.

[divemedic]

All I am pointing out is that this subject is up for debate, and is by no means as concrete as you would have the readers believe. I think that the above post I made (which by the way came directly from the case you cited) shows that email CAN be used as evidence without having the original code from the originating servers.


One last note. If you are a pro-se litigant (in court without a lawyer) you cannot authenticate your Electronically Stored Information (ESI) document production on your own word alone. Officers of the court (lawyers, police, etc) can and their testimony of what they witness is prima facie true by way of their oath of office to uphold the law. As a pro-se you don't get that consideration. If all you have is your own word that an e-mail is authentic, you will need to start looking for supporting testimony or secondary evidence.

1 You testify that this is what the sender told you
2 You corroborate the testimony by producing a copy of the email.

Can the opposition claim you forged it? Sure. That is no different than the opposition claiming that you forged a written letter, which is exactly what FP was trying to say.

Read it again:

the argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of PaR.E. 901 and Pennsylvania case law . . . We see no justification for constructing unique rules of admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

You and I both know that issues like this are rarely carved in stone.

[Methuss]

You and I both know that issues like this are rarely carved in stone.

Of course. It's hard to deny that if you pass all 5 of those benchmark hurdles, your e-mail will nearly always be admissible.

As for the pro-se litigant issue. Unless you are in small claims, which is basically arbitration, it is emminently bad judgment to put yourself on the stand to testify. It would subject you to cross and your whole house of cards can -and probably will- come down when faced with cross examination by a professional lawyer. My statement about not authenticating your own evidence is based on the presumption that you won't make such a bad mistake in your strategy. And as you noted, you have to testify.

That testimony is not prima facie true as it is for an officer of the court. That means if an officer of the court testifies, the burden required to disprove that testimony is higher than that of a pro-se litigant's.

Let me give a real world example: You get a speeding ticket. The police officer, being an officer of the court has testified that your broke the speed limit. That testimony is presumed to be true. He doesn't need to supply any more information to the court other than his word. You must now do more than just cast doubt on it, you have to prove you did not exceed the speed limit. As a pro-se litigant you respond by alleging the radar gun was not properly calibrated. Even if you are an expert in microwave technology and examined the radar device, this allegation is not presumed to be true even though you saw the radar device was not functioning correctly. You need secondary evidence to support the allegation in order to show your claim is true and show the officer's testimony is not true.

That's the difference. That is why your pro-se word alone is not enough to authenticate the e-mail. You can't circularly use your word to prove the e-mail printout and the e-mail print out to establish truth of your word.

[nascar]

That testimony is not prima facie true as it is for an officer of the court. That means if an officer of the court testifies, the burden required to disprove that testimony is higher than that of a pro-se litigant's.

Here is a real-world conundrum. Say, I am an officer of the court (and I am, by the way) and I represent myself as a non-laywer pro-se litigant. Does that make my burden of proof less than the typical pro-se litigant?

[divemedic]

First, an attorney who is representing someone in a given case cannot testify, because they are not under oath. Counsel does not create evidence, they present it. An attorney involved in a case cannot be an affiant.

Second, a pro se litigant is held to a LOWER standard than is an attorney. The courts have held that pro se litigants should be held “to less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 520 (1971), “pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials.” Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994).

Whether or not your testimony falls apart under cross examination has nothing to do with admissibility, because admissibility issues are handled BEFORE the trial, in dispotive hearings.

Actually, the radar example is not correct. The officer testifies that his radar showed you were speeding. He will also testify that:
1 He is certified in accordance with state law to operate the device.
2 The device was properly calibrated by a certified laboratory within the last 12 months
3 The device was tested at the beginning of the shift, in accordance with the manufacturer's instructions

Whether you testify or not, it makes little difference, because this is a mountain of evidence.

It has nothing to do with his status as a police officer, and everything to do with the burden of proof. Police and attorneys have no more authority when they testify than anyone else.

I once beat a ticket because the police officer who signed it was not certified to operate the laser with which he clocked me. Since he was not, he could not testify that the machine was correct because he could not possibly know if he was properly operating the laser device.

The only area where being an officer of the court matters is in procedural matters, not evidenciary ones.

[nascar]

It has nothing to do with his status as a police officer, and everything to do with the burden of proof. Police and attorneys have no more authority when they testify than anyone else.

You are absolutely 100% correct.

The testimony of an officer of the court carries no more weight than anyone else. It is subject to the same presumption of truth (until rebutted or objected to) than anyone elses. The difference is that they can testify to the authenticy of something on behalf of another or "in another's place" and still retain the same presumption of authenticity.

It's like when I testify on behalf of a minor or an incompetent, my testimony is just as authentic or true as if the person were saying it themselves, and just as succeptible to rebuttal as their's would be, if were they testifying on their own behalf.

[Methuss]

Actually, the radar example is not correct. The officer testifies that his radar showed you were speeding. He will also testify that:
1 He is certified in accordance with state law to operate the device.
2 The device was properly calibrated by a certified laboratory within the last 12 months
3 The device was tested at the beginning of the shift, in accordance with the manufacturer's instructions


Last time I was in court and witnessed one of these (I was there for a different reason, bogus parking ticket), the officer didn't have to provide any proof to support those 3 things in testimony. Yes he did testify to those points, but his statements were taken as truth with nothing more to support it entered into the record. No copies of his certification, no copies of any calibration reports....I seem to recall the pro-se defendant not being allowed to question the officer under cross either...which I though was odd. (and this reminder of that has me wanting to ask the professor about that this Friday)

In case you are not a law student. The first thing they teach in Law Concepts is: There is a distinct difference between justice and law. And they don't always meet the same end.

[nascar]

There is a distinct difference between justice and law. And they don't always meet the same end.

Ain't that the truth!

[divemedic]

I agree. Court is not there to decide who is right or what is fair. It is there to decide who has the best attorney.

[cracrap]

I agree. Court is not there to decide who is right or what is fair. It is there to decide who has the best attorney.

PREACH IT TO THE CHOIR BROTHER!!!
I WILL SECOND THIS FROM FIRSTHAND EXPERIENCE!!

[direred]

I agree. Court is not there to decide who is right or what is fair. It is there to decide who has the best attorney.
Well, the best argument, which may or may not be objectively the best attorney.

[KentWA]

I have found further infomation on this that people might like to read from Shidler Journal of Law. Where this can really come into play as I see it is when a CA tries to submit records into evidence to prove that you owe a debt. They are going to need to prove the reliability and procedures around the OC's computer system as well as theirs and any methods used to transfer the debt from one system to the other.

http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html

The best way I think to approach this in using these arguements as a Pro-Se is to point out the previlance of Malware,Viruses, etc. Remember the school teacher whose computer was compromised? It happens to a lot of people and businesses too. How then do you know when digital records are authentic? Have they had any system break ins, or comprmises and how would they know? If DOD can not keep their system secure, how can a court expect NCO, Palisades, and that gang to keep their systems secure?

In court you have to throw every arguement possible at an issue or lose your chance to argue it. This is not a silver bullet, just one more tool in the tool box to rebutt their arguements.

Kent

[admin]

Excellent!!

[Andy Simmons]

Yes, but...

...most credit card cases are filed in state court, not federal court. A state court follows the rules of evidence of that state. Many states model their rules of evidence after the federal rules, but that does not necessarily mean that a state court will be bound by federal rules or a federal case law.

You need to look at the rules of evidence for the state in which you case is filed.