Email’s Not a Business Record - How Do You Get It In?
Business litigation runs on email. While almost every case will have a smattering of crucial non-email documents – maybe a relevant contract, an off-color text message or an unfortunately fraudulent PowerPoint – virtually every document collected, processed, and reviewed in every business case is an email. As such, you can get pretty far as a commercial litigator by simply assuming that: Evidence = Email.
And for most stages of litigation, this is essentially true. In a deposition you can show a witness (almost) any email that you can lay your hands on. And while technically courts are required to consider only admissible evidence in support of a summary judgment motion, [1] this rule is often honored in the breach. [2] Look at the summary judgment papers from many commercial cases and you will see vast quantities of emails submitted with only the thinnest pretense of foundation – usually just an attorney declaration that they are “true and accurate copies.”
But this “anything goes” approach to evidence often vanishes at trial. While the strictness with which the rules of evidence are applied varies tremendously from court to court and even judge to judge, once a trial begins you cannot assume that an email message, even if relevant and germane to the case, will necessary be permitted into evidence. As an out-of-court statement, virtually every email is presumptively hearsay and is admissibly only if it falls into one of the established carve-outs or exceptions to the hearsay prohibition.
If you vaguely remember an evidence class in law school or watched a courtroom TV show or two, you may recall something about a “business record” exception to hearsay. But that exception does not apply simply because a document is a “record” kept by some kind of “business.” And numerous courts have held that business email does not automatically qualify as a “business record” for the purpose of admitting it into evidence. [3]
So, how do you actually get an email into evidence?
First, consider who sent the email. If the email was sent by the opposing party or one of its agents, you should almost always seek to have it admitted as a “party admission” rather than mucking about with any other evidentiary rules. Keep in mind that, at least under the Federal Rules of Evidence, a “party admission” is not the same thing as an “admission against interest” and is generally a much easier way to get a document into evidence. [4] In fact, under Fed. R. Evid. § 801(d)(2), a “party admission” does not actually require the party to “admit” to much of anything. All that is necessary is that the email be “offered against a party” and that the email contains:
(A) the party's own statement, in either an individual or a representative capacity
or …
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,
If you’re litigating against an individual and they sent the email, then (A) is your ticket. If you’re up against a business and one of their employees sent it, then (D) is usually your easiest road. The relevant rule contains sections B, C, or E that you can rely upon under unusual circumstances, but for most emails sent by the other side, you’ll be in much better shape with these two. [5]
Second, consider whether any version of the email was included in a message sent by your opponent. It is the nature of email for replies to mechanically quote verbatim the messages that they are responding to. So even if the message that you care about was sent by your client, if the other party responded to it, (or forwarded it internally) you can simply admit the response or forwarded message. Once that larger email is in evidence, you can use whatever part you wish, including the original (otherwise inadmissible) message.
Third, if no version of the email was sent by your opponent (let’s say it was an internal email between two of your client’s employees) you can try to admit the email as a business record. But do it the smart way! Pay at least lip service to the requirements of the rule. Under Fed. R. Evid. § 803(6), an email can be admitted as a business record if:
(1) It was “made at or near the time by” the facts that it describes,
(2) It was made by “a person with knowledge” of those events,
(3) It was “kept in the course of a regularly conducted business activity” and
(4) It was the “regular practice of that business activity to make” the email.
So, if the other side objects to an email as hearsay, ask the author or recipient of the email to confirm something that at least looks like these factors. For example, if it’s an internal email about the status of contract negotiations with the bad guys, ask:
Q. Did you write this email?
A. Yes.
Q. What’s it about?
A. The negotiations with the bad guys.
Q. How did you know about those negotiations?
A. I was there.
Q. When did you write this?
A. As soon as the negotiations were done.
Q. Did you always send out emails about the negotiations just after they were done?
A. Yes.
Q. And was it your practice to keep those emails so that you could refer to them later if necessary?
A. Yes.
You may have to prep and/or lead the witness a bit to ensure that the answers come out correctly, honestly, and cleanly. But even if clumsily executed, this foundation will go a lot further and ward off a lot more hearsay objections than some half-improvised “is this a record kept in the general course of business?”
Fourth, consider the last refuge of scoundrels, the “not for the truth” and “state of mind” exceptions to the hearsay rule. For example, when the other side objects to an email as hearsay, argue that you aren’t offering the email for the truth of its contents, merely to show that the communication was made. Or argue that the email is relevant to showing the “state of mind” of the person who authored it.
Sometimes these arguments will work in a vacuum, but they are substantially stronger – and more legally appropriate – when the fact of the communication or the author’s state of mind are relevant to the case. So be prepared to defend the arguments with some reason, however tenuous, that the fact of transmission or the author’s mental state are important. For example, consider something like “the other side claims that the author defrauded them – this shows that he never intended to mislead them.” Or “the other side claims that we decided to do X on Y date – this shows that the decision was still being debated.”
In some cases, a court will accept these arguments, but offer a limiting instruction, telling the jury that they are only to consider the email for the stated purpose you offered rather than for its truth. But while you would certainly prefer the email be admitted for all purposes, if the email is good for the case, you want the jury to read it, however theoretically limited.
Fifth, if nothing else works on direct examination, consider trying the “prior consistent statement” exception in redirect. Often the main reason you will want to introduce an email is to lend credibility to trial testimony from the person who authored it. So, if the other side objects to an email and then challenges the author’s testimony on the topic covered by the email in cross examination, you can try offering the email in redirect examination as a “prior consistent statement.” All that is required under Fed. R. Evid. 801(d)(1)(B) is that the email be “consistent with” the subsequent testimony and that it serve to “rebut an express or implied charge that the declarant recently fabricated” the testimony. While not a magic bullet, almost any cross examination on the same issue would ordinarily tend to imply that a witness is not being completely truthful, and opens up the possibility of using this exception.
Obviously, it would likely be better if the rules of evidence had a more thoughtful approach to the admissibility of corporate email and did not require parties to shoehorn the primary type of modern evidence into rules designed for older analog records. But generally speaking, most relevant email in most cases can find its way in front of a jury, provided that you give some thought as to how to characterize it with the evidence rules in mind.
[1] Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (“On a summary judgment motion, the district court properly considers only evidence that would be admissible at trial.”).
[2] See, e.g., Piersons v. Quality Archery Designs, Inc., Case No. 306CV0408TJMDEP, 2009 WL 10680314, at *6 (N.D.N.Y. Feb. 26, 2009) (“Motions to strike materials submitted in support of or in opposition to motions for summary judgment are generally disfavored, since when reviewing such materials a court is fully capable of determining which portions of such documents are entitled to evidentiary value, and if so, what weight is to be given.”).
[3] See U.S. v. Daneshvar, 925 F.3d 766, 777 (6th Cir. 2019) (“An email is not a business record for purposes of the relevant hearsay exception simply because it was sent between two employees in a company or because employees regularly conduct business through emails”); U.S. v. Cone, 714 F.3d 197, 220 (4th Cir. 2013) (“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”).
[4] An admission against interest requires that the author of the email be unavailable (so you’re out of luck if they’re a witness) and that both (1) “ a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability” and (2) the statement is “is supported by corroborating circumstances that clearly indicate its trustworthiness.” Fed. R. Evid. § 804(b)(3). That’s so much work! Use this rule if you must, but do not bother with it when its more easy-going friend, the “party admission” is available.
[5] For example, Fed. R. Evid. 801(d)(2)(C) allows for admission of a statement “made by a person whom a party authorized to make a statement on the subject.” But under most circumstances, any person making statements on a party’s behalf is likely already an “agent or employee” acting within the scope of their duties. Using the “employee talking about something related to their job” rule instead allows you to sidestep the often-thornier question of whether the statement was specifically “authorized” or not.
