Page 13 - Litigation

NYLJ.COM |
Litigation | MONDAY, MAY 5, 2014 | S13

comprehensive guidelines for the admissibil- email threads as raising unique reliability dation to admit this increasingly signiicant (D. Or. May 8, 2012) (adopting strict test).
15. No. CIV.A.H-11-1288, 2012 WL 5355754 (S.D. Tex.
ity of electronic evidence, expressing disap- questions under Rule 803(6). In contrast to type of evidence.
Oct. 29, 2012).
proval of foundational testimony consisting cases admitting emails under the theory that •16. Id. at *6.
of “boilerplate, conclusory statements that they were received and kept in the ordinary ••••••••••••••••••••••••••••
17. Id. (citing Pierre v. RBC Liberty Life Ins., No.
simply parrot the elements of the business course of business, these courts have taken 1. Fed. R. Evid. 803(6)(A)-(E).
CIV.A.05-1042-C, 2007 WL 2071829, at *2 (M.D. La. July
record exception” and recommending instead a strict approach to email threads, requiring 2. United States v. Strother, 49 F.3d 869, 874 (2d Cir. 13, 2007)).
“factual speciicity about the process” by proof that each portion of the thread meets 1995) (considering admissibility of memorandum) (cita- 18. No. CIV.A.H-06-1330, 2008 WL 1999234 (S.D. Tex. May 8, 2008).
which the electronically stored information the requirements of Rule 803(6).30
tion omitted).
3. Id. (citation omitted).
19. Id. at *13.
is created and maintained.27 Other cases 4. 823 F. Supp. 2d 166 (E.D.N.Y. 2011).
20. Id.
in that district have likewise held that the 5. Id. at 187.
21. See SkyBluePink Concepts v. WowWee USA, No.
Conclusion
6. Id.
12 C 7573, 2013 WL 997458, at *3 n.1 (N.D. Ill. March 13,
email’s proponent must provide “speciic- 7. Id.
2013); Komal v. Arthur J. Gallagher & Co., 833 F. Supp. 2d
ity” regarding the business’ “recordkeeping Given the vastly different approaches taken 8. Id. at 189. Compare Park West Radiology v. CareCore
Nat’l, 675 F. Supp. 2d 314, 333 (S.D.N.Y. 2009) (emails inad- 855, 859 (N.D. Ill. 2011); Pierre, 2007 WL 2071829, at *2.
practices to show that a particular email in by the courts concerning the admissibility missible where no showing that individuals were “under 22. Healix Infusion Therapy v. HHI Infusion Servs, No. 10 C 3772, 2011 WL 291160, at *1 (N.D. Ill. Jan. 27, 2011)
fact constitutes a reliable business record” of emails under Rule 803(6), parties should an obligation to create the emails as a record of regularly (afidavit from records custodian attesting that emails
and cautioning that it “may not be appropri- be prepared to meet the most exacting legal conducted business”); United States v. Gabayzadeh, 428 “are exact copies of emails received on the Healix server
ate to assume the same degree of accuracy standards. And, of course, there are other F. App’x 43, 47 (2d Cir. June 27, 2011) (emails properly excluded where witness “had no personal connection” and “kept in the normal course of business” was sufi-
and reliability” of emails, which are gener- exceptions to the hearsay rule, as well as to them).
cient); see also Doctors Med. Ctr., 2009 WL 2500546, at
ally more casual than other records kept in non-hearsay purposes for which an email may 9. No. S1 05 Crim. 0888 (LAK), 2007 WL 3009650, at *1 *13; LeBlanc v. Nortel Networks, No. Civ. A. 3:03-CV-65,
(S.D.N.Y. Oct. 15, 2007).
2006 WL 839180, at *5 (M.D. Ga. March 30, 2006).
the course of business.28 Citing this concern, be admitted that should always be explored, 10. Id.
23. 591 F.3d 984, 987 (8th Cir. 2010).
24. Id.
some courts have focused on proof that it was such as when the email can be offered for a 11. Id. The Second Circuit has upheld the admissibil- ity of paper documents under Rule 803(6) where the de- 25. In re Oil Spill by the Oil Rig “Deepwater Horizon”
the regular business practice of employees purpose other than for the truth of the matter clarant was a third party if someone inside the company in the Gulf of Mexico, on April 20, 2010, MDL No. 2179,
to routinely write and maintain emails of the asserted therein, party admissions, and pres- had a duty to verify the information, United States v. 2012 WL 85447, at *3 (E.D. La. Jan. 11, 2012).
type sought to be admitted under Rule 803(6), ent sense impressions. As a practical matter, Reyes, 157 F.3d 949, 952 (2d Cir. 1998), or the document 26. See Rogers, 2012 WL 1635127, at **8-10.
as well as the formality of the emails. Thus, for with both sides of the table generally looking was received, maintained, and relied upon by the com- 27. 241 F.R.D. 534, 545-46 (D. Md. 2007).
instance, courts have rejected emails report- to introduce emails, parties may also want pany in the ordinary course of its business. United States v. Jakobetz, 955 F.2d 786, 799-801 (2d Cir. 1992).
28. Its My Party v. Live Nation, No. CIV. JFM-09-547,
ing on events where they were sent at the sole to consider whether it may be appropriate 12. See, e.g., Sanderson v. Horse Cave Theatre 76, 881 2012 WL 3655470, at *5 (D. Md. Aug. 23, 2012) (citing Lorraine, 241 F.R.D. at 534); accord Rambus v. Inineon
discretion of the author, concluding that such to stipulate to the admissibility of speciic F. Supp. 2d 493, 499 (S.D.N.Y. 2012); Schaghticoke Tribal Techs., 348 F. Supp. 2d 698, 702-03 (E.D. Va. 2004).
Nation v. Kempthorne, 587 F. Supp. 2d 389, 397-98 (D. 29. Westfed Holdings v. United States, 55 Fed. Cl. 544,
documents “raise motivational concerns” and emails or certain categories of emails.
Conn. 2008).
566 (2003), aff’d in part, rev’d in part on other grounds,
“lack the reliability and trustworthiness that Five years ago, a court commented that
13. 43 F.3d 443, 450 (9th Cir. 1994).
14. See, e.g., Volterra Semiconductor v. Primarion, No. 407 F.3d 1352 (Fed. Cir. 2005); see also Versata Software v.
business records are ordinarily assumed to it was “not unusual to see a case consisting
C-08-05129 JCS, 2011 WL 4079223, at *7 (N.D. Cal. Sept. Internet Brands, No. 2:08-cv-313-WCB, 2012 WL 2595275,
have,” as well as casual emails containing 31
almost entirely of email evidence.” The prev-
12, 2011); In re SK Foods, No. 09-29162-D-11, 2010 WL at *5 (E.D. Tex. July 5, 2012); State of New York v. Micro-
“chit-chat” similar to telephone calls or hall- alence of email for business communications 9476207, at *16 (Bankr. E.D. Cal. April 5, 2010); Doctors soft, No. Civ A. 98-1233, 2002 WL 649951, at *2 (D.D.C.
way conversations.29
has only grown since then and practitioners Med. Ctr. of Modesto v. Global Excel Mgmt., No. 1:08-cv- April 12, 2002) (citation omitted).
30. See, e.g., Microsoft, 2002 WL 649951, at **3-5; Ram-
Finally, some federal courts have viewed
should be vigilant to establish a proper foun-
01231 OWW DLB, 2009 WL 2500546, at *13 (E.D. Cal. Aug. 14, 2009). But see Rogers v. Oregon Trail Electric Consum- bus, 348 F. Supp. 2d at 703.
ers Coop., No. 3:10-CV-1337-AC, 2012 WL 1635127, at *8
31. Lorraine, 241 F.R.D. at 554.