|
|
|
|
| |
|
|
|
Email is emerging as the preferred method of communication in the business world. Email provides quick communication that is easy to save for future reference. What was once talk around the water cooler is now discussed by email. This everyday use of email can create interesting evidentiary issues for businesses involved in litigation.
For example, a corporate litigant might want to have an email entered as evidence at trial because it describes events in a favorable light at the time that they were happening. In this situation, the email would typically be hearsay and would be inadmissible. So, it would have to fall within an exception to the hearsay rule (perhaps the business records exception) to be admitted into evidence.
EMAIL AS A BUSINESS RECORD
A party's best chance at having an otherwise inadmissible email admitted into evidence at trial is as a business record. However, in order to have an email admitted into evidence as a business record, the document must meet all the prerequisites in Tenn. R. Evid. 803(6). The Federal Rules of Evidence are substantially the same as the Tennessee rules on this issue. Tennessee courts have held that, in order to establish the applicability of the business records exception, a proponent must prove the following elements: (1) the record was made at or near the time of the recorded event; (2) the person who is the source of the information has firsthand knowledge of the matters recorded; (3) the individual involved must have a business duty to record the information; (4) the business entity involved must customarily generate such documents; and (5) the methodology involved in providing the information or preparing the documents must not indicate untrustworthiness. Meeting these criteria is no easy task in the case of email due to its informal and irregular nature.
Corporate litigants who routinely use email for record-keeping purposes should be advised of this rule and the necessary showing that must be made in court. The individuals charged with transmitting information pertinent to the company should do so in such a manner as to make the email qualify as a business record.
A party challenging an email's admissibility as a business record should focus on the drafter of the email and the specific business duty, if any, that requires the drafter to prepare and maintain such communications. It is not enough for the employee to claim he has some general duty to generate and maintain such emails. To be admissible, the employee must testify that he normally prepares and maintains such emails in the regular course of business. Further, the contents of the email should be closely examined for double hearsay and statements made without personal knowledge.
A party opposing admission of an email as a business record may also seek to exclude it if it was prepared in contemplation of litigation. Specifically, Rule 803(6) states that a business record cannot be admitted if ". . . the source of information or the method or circumstances of preparation indicate lack of trustworthiness." So, even though the prerequisites to Rule 803(6) may have been met, documents prepared for use in litigation can be excluded at the discretion of the trial judge.
OTHER WAYS TO ADMIT EMAIL
If a party cannot make a showing to the court that an email is a business record, there may be other ways to at least get the content of an email admitted into evidence. For example, an email may be made admissible under the Rule 803(5) recorded recollection exception to the hearsay rule. This rule has several components. The document in question must concern a matter about which the witness once had knowledge, and the document must have been made or adopted by the witness when the matter was fresh in the witness's memory. The proof must also show that the witness now has insufficient recollection to enable testimony as full and accurate as the information in the document. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
If a witness cannot remember certain events or matters that are recorded in an email, the proponent of the email may use it to refresh the witness's recollection pursuant to Tenn. R. Evid. 612. However, the email itself will not be admitted into evidence or read into evidence at trial. Nonetheless, the email may still be identified by the witness at trial and visibly used to refresh the witness's recollection, and this act will not go unnoticed by the jury or court.
CONCLUSION
With email becoming the primary source of communication for most businesses, it is not surprising that some traditional methods of record keeping are being impacted. Litigators must be cognizant of the way courts view emails to effectively support or oppose their admission into evidence.
For more information about this topic, please contact Janna Smith (jes@mglaw.net) or one of our other Litigation attorneys. |
|
|
|
|
