Page 8 - Litigation

S8 | MONDAY, MAY 5, 2014 | Litigation | NYLJ.COM

Admissibility of Email Under FRE’s

Business Records Exception

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BY JENNIFER HURLEY MGAY record was a regular practice of that activity; ever, are becoming more uncommon as they for admissibility of business records is trust-
cAND SUJATA M. TANIKELLA
(d) all these conditions are shown by the tes- are superseded by email. This predominance worthiness, the record must still meet all the
timony of “the custodian” or “another quali- of email has forced courts to confront the requirements of Rule 803(6), an analysis left to
O
ver the past few decades, the use of ied witness”; and (e) “neither the source of question of whether—and when—emails may the “sound discretion” of the district court.3
email for business communication has information nor the method or circumstances be admissible under Rule 803(6). The answer District courts within the Second Circuit have
grown dramatically. As a result, parties of preparation indicate a lack of trustwor-
to this question varies considerably across
generally interpreted Rule 803(6)’s require-
have increasingly come to rely upon email as ments broadly as applied to email.
potential evidence for summary judgment and For instance, in Penberg v. HealthBridge
trial. Although emails may be objectionable Management,4 the Eastern District of New
as hearsay, parties are more frequently seek- York considered the admissibility of a cryptic The predominance of email has forced courts to confront the ques-
ing to admit them under Rule 803(6) of the email sent from the personal computer of an
Federal Rules of Evidence, known as the “busi- employee of a company hired to investigate tion of whether—and when—emails may be admissible under Rule
803(6). The answer to this question varies considerably across jurisdic-
ness records exception” to the hearsay rule.
whether the plaintiff leaked conidential infor-
Rule 803(6) provides that a “record,” even mation. The email read: “Attached you will tions and even among district courts within the same judicial circuit.
if hearsay, may be admissible if the following ind a screen capture with IP address and total
elements are met: (a) it was made at or near iles shared, in addition to a .txt ile contain-
the time by, or from information transmitted ing the titles of all iles in the shared folder. I thiness.”1 The rationale for admitting such jurisdictions and even among district courts
by, someone with knowledge; (b) it was kept am also attaching a few sample documents.”5 records is that employees have a duty and within the same judicial circuit.
in the course of a regularly conducted activity The court noted that, like other documents, incentive to accurately record facts and
of a business or organization; (c) making the
emails may be admissible if they were “regu- events in the course of their employment and
The Second Circuit
larly made in furtherance of the employer’s there is a general trustworthiness of records
needs and not for the personal purposes of that are regularly made and maintained.
The Second Circuit “has adopted a ‘gener-
JENNIFER HURLEY McGAY is a partner and SUJATA M. the employee who made them.”6 To that end, Emails, of course, are generally more casual ous view’ of the business records exception,
TANIKELLA is counsel at Bingham McCutchen in New courts consider “whether it was the business than interofice memoranda, letters, and other ‘construing it to favor [ ] the admission of
York, where they are members of the inancial institu- duty of an employee to make and maintain paper records traditionally admitted under evidence . if it has any probative value at
tions regulatory, enforcement and litigation group.
emails as part of his job duties » Page S12
Rule 803(6). Such conventional records, how-
all.’”2 Although the principal consideration