© 2014 The Texas Lawbook.
By T. Ray Guy
Special Contributing Writer to The Texas Lawbook
The emergence of email as a primary vehicle for business communications is arguably the most important technical and cultural development affecting trial practice during the past several decades.
What we overlook when bemoaning the ubiquity of email communications is their enormous utility in providing a contemporaneous written history of disputes. Electronic mail, when preserved, provides an as-it-happened record of events that would in the past have been recorded by only the most conscientious note-takers, fastidious diarists, or prolific correspondents.
A trial lawyer’s ability to use email communications as a tool for proof requires familiarity with the Rules of Evidence—in particular, the definition of hearsay, exceptions to the proscription of hearsay evidence, and the rules concerning authentication of documents.
The effective use of email communications at trial requires careful planning of examinations, both direct and cross, so as to skillfully weave emails into the telling of the story through the witness. It also requires familiarity and coordination with the court room presentation system.
A. AUTHENTICATION AND ADMISSIBILITY: GETTING THE EMAIL MESSAGE INTO EVIDENCE.
The persuasive power of email messages is grounded in a truism that no one has ever heard—because I made it up—but that every juror would instantly understand: People change their stories. Documents don’t.
Memories fade between the time of the event and the day of trial. Sometimes people lie, even under oath. The story a witness presents at trial often differs from the one he or she would have told, at or near the time of the event, in the absence of any incentive to testify in a particular way.
But from the moment prose is committed to paper—or to electronic memory for later printout—it doesn’t change (absent forgery or other alteration). The contemporaneous written word describing an event or evidencing a state of mind carries power stronger than that of oral testimony regardless of whether you’re using it to confront a hostile witness whose oral testimony is contradicted by the text of the email message, or to buttress the testimony of a friendly witness by demonstrating its consistency with a contemporaneous memorialization.
So how do you get email messages into evidence?
1. Authentication.
Printed copies of email messages, like any other documents, must be properly authenticated.
Obviously the easiest way to authenticate a printout of an email message is the testimony of the sender or a recipient (including a cc or bcc recipient)—a “Witness with Knowledge,” under Rule 901(b)(1) of the Federal Rules of Evidence—whether by deposition or live at trial.
If the testimony is from a recipient of the message—or, for that matter, from a hostile witness who is identified in the message as its sender—proving up the message (or overcoming post-admission arguments against its authenticity) may require testimony concerning the security of the sender’s or organization’s email system under Rule 901(b)(9).
In the absence of testimony from the sender or a recipient, or if the sender disclaims the message, the authenticity of the message can be proven by appropriate testimony concerning the email system or systems in question, under Rule 901(b)(9) (“Evidence About a Process or System”), which requires evidence “describing a process or system and showing that it produces an accurate result.” The requisite testimony may be supplied by an expert witness, under Rule 702, or—especially if the email message is internal, sent and received entirely within an organization’s email system—an information systems employee or officer of the organization, testifying as a fact witness or a lay opinion witness under Rule 701.
If the email message in question was produced in discovery by the party opposing its admission, that fact alone typically clears the authenticity hurdle.
2. Admissibility.
Authentication doesn’t make an email message admissible. Even if the author of the message is on the stand admitting having sent it, the message remains hearsay, as an out-of-court statement “that the declarant does not make while testifying at the current trial or proceeding . . .” under Rule 801(c)(1), if it is being “offered in evidence to prove the truth of the matter asserted in the statement.” Rule 801(c)(2). It’s inadmissible hearsay absent an applicable exception. So how do you get it into evidence?
a. Not Offered for the Truth.
Sometimes the utility of an email message doesn’t turn on the truth, or falsity, of what’s contained within its text. For example, you may offer the message just to establish the chronology of a dispute, and not care whether the assertion is true.
An email message, like any other written or oral communication, isn’t hearsay if it isn’t being offered for the truth of its contents. But an assertion that this is the basis for admissibility can’t be a subterfuge, and you obviously need to be able to articulate the non-hearsay reason why the message is relevant and what it tends to prove—and be willing to live with a limiting instruction informing the jury that the message can’t be considered for its ostensible truth.
b. Opposing Party’s Statement.
Generally known under pre-Rules common law as “admissions of a party opponent,” this concept is now codified in Rule 801(d)(2) as simply “An Opposing Party’s Statement.” The Rule sets forth five alternative bases on which an email message attributable to your opponent or its representative will be considered not hearsay, and thus will be admissible. The Rule doesn’t explicitly require that the email message constitute an “admission,” as the common law required, but if it’s relevant under Rule 403—and if you’re seeking its entry into evidence—there will presumably be something about the email that’s inconsistent with some aspect of your opponent’s position at trial.
c. Declarant’s or Witness’s Prior Statement.
In a similar vein, an email message, that was authored or adopted by a testifying witness and that is consistent with his trial testimony, doesn’t constitute hearsay and is admissible under Rule 801(d)(1)(B) if offered to rebut a claim of recent fabrication or of testimony shaped by improper influence or motive.
d. Business Records.
The business records (or “shop book”) rule is codified in Rule 803(6) of the Federal Rules of Evidence (“Records of a Regularly Conducted Activity”). Since it falls within Rule 803’s set of hearsay exceptions applicable regardless of whether the declarant is available, it’s ideally suited for documents for which you don’t have testimony from a sender or recipient.
Courts have repeatedly ruled that email messages can constitute business records under Rule 803(6) or corresponding state law rules of evidence. The application of the rule to email messages does trigger some “unique problems of recent vintage.” U.S. v. Cone, 714 F.3d 197, 219 (4th Cir. 2013). For example, who is the “custodian or other qualified witness” (Rule 803(6)(F))? Can an incoming email message, from a sender not affiliated with the organization, nevertheless become a business record if incorporated into the organization’s files? Under what circumstances is an email message “kept in the course of a regularly conducted activity?” Is a snarky email message concerning fellow employee (or opposing party) really part of the regular activity of the organization?
There are other issues, of course, that would justify an entire article about email communications as business records.
e. Present Sense Impression.
“A statement describing or explaining an event or condition, made while or immediately after the declarant observes it . . .” is admissible under Rule 803(1), regardless of whether the declarant is available to testify. This exception has been applied to justify the admission of, for example, an email message concerning a just-finished telephone conversation with a representative of the opposing party. This exception seems peculiarly adaptable given the dynamics of email communication—virtually universal and immediate access to a computer, tablet, or smartphone, with which to inadvertently record for posterity what would in past times have existed only in non-electronic memory.
f. State of Mind.
An email message illustrating its sender’s “then-existing state of mind . . . or emotional, sensory, or physical condition . . .” is admissible under Rule 803(3)—again, regardless of whether the sender available to testify—in a case in which it is relevant.
B. EMAIL MESSAGES AS TESTIMONIAL SUPPORT BUT NOT NECESSARILY ADMISSIBLE.
There are at least two circumstances in which an email message may be effective to bolster oral testimony but may not be admissible into evidence.
1. Recorded Recollection.
An email message commonly evidences what the sender knew about an event at a point in time in the past—concurrently with sending the message—but she may not now recall the events she recorded in the message. Under those circumstances, Rule 803(5) provides that the message is not excludable as hearsay, provided that it was written while the event was fresh in the witness’s mind and accurately reflected her knowledge at that time. However, the Rule also limits the use of the email under those circumstances: it “may be read into evidence but may be received as an exhibit only if offered by an adverse party.”
2. Refreshed Recollection.
An email message may also serve to refresh the memory of a testifying witness. Witness recollection is taught in trial advocacy classes as a choreographed time-of-trial routine. I doubt that many readers of this article have ever conducted such an examination in an actual trial or arbitration proceeding. If the apparently-forgetful witness is hostile, he likely will decline to agree that an email message has refreshed his memory; if he is a witness within your control, the refreshing of his memory will likely have occurred during a pretrial witness preparation session.
C. APPLYING THE RULES: EFFECTIVELY USING EMAIL MESSAGES FOR PROOF.
1. Admissibility as the Ultimate Goal.
If you care about nothing more than getting the email message into evidence, the game is over once you satisfy the appropriate rule justifying admission. The email message may, for example, establish an important date on the dispute timeline; or you may just want to use it in closing argument or point it out in post-trial briefing in a bench trial or arbitration.
Ordinarily, however, if the email message is of any utility, you’ll have reason to want to highlight its contents during the examination of one or more witnesses.
2. Email Messages in Examination of Opposing Party or Adverse Witness.
Obviously an email communication that contradicts the opposing party’s position or is inconsistent with an adverse witness’s trial testimony is an extraordinarily useful tool for cross-examination. The Rules address the use of such messages in two ways.
a. Opposing Party’s Statement.
As set forth above, the Federal Rules make this one easy. An email message that meets Rule 401’s relevancy threshold, in that it tends to make a material fact more or less probable, is admissible if it is properly attributable to the opposing party. But to get the contents of the message before the trier of fact, the email needs to be woven into the examination of a witness who is the sender, a recipient (including a cc or bcc recipient), or someone who was contemporaneously made aware of the communication, or who is otherwise connected with its subject matter.
It need not be an admission, or an inconsistent statement, but the power of the email message is magnified if it is indeed inconsistent with the opposing party’s trial position, in that its contents both support your contentions and undermine the credibility of the opponent.
b. Witness’s Inconsistent Statement.
If the witness is not the adverse party (or an employee or other person authorized to speak for the adverse party), the use of the witness’s email message inconsistent with his trial testimony requires that (1) the adverse party’s attorney, on request, be shown a copy of the message (Rule 613(a)); (2) the witness be given an opportunity to explain the statement; and (3) the opposing party have the opportunity to examine the witness concerning the statement.
But if the witness isn’t a party (or someone whose statement binds the party), the statement remains hearsay, and your opponent is generally entitled to a limiting instruction informing the jury that the contents of the email are to be considered only as they reflect on the witness’s credibility and not for the truth of the statements.
3. Buttressing the Testimony of a Friendly Witness.
In my view, email communications are no less impactful when used in direct examination to support the trial testimony of your witness. The trier of fact may be suspicious that your witness’s testimony has been shaped by counsel or shaded, deliberately or subconsciously, by post-event, time-of-trial motives or influences. An email message or other document that is consistent with the trial testimony and that was generated and sent before the dispute arose—or even after it arose, but before suit was contemplated or filed—is an effective tool for buttressing the credibility of that testimony.
a. Consistent Statements.
As mentioned above, Rule 801(d)(1)(B) provides that such an email message or other document is admissible if offered to rebut a claim of recent fabrication or of testimony shaped by improper influence or motive. But I would argue that the charge of recent fabrication can be express or implicit, direct or indirect—meaning if your witness’s trial testimony on the point is material to your case, the opponent’s case posture in and of itself should justify admission of a prior email message consistent with that testimony.
b. Refreshed Recollection and Recollection Recorded.
The effectiveness of an email message used either to refresh the witness’s recollection, or to memorialize a past recollection, is lessened because—as I mentioned earlier—there’s no guarantee that the document itself will ever be in evidence. But it’s better than nothing; a contemporaneous piece of paper, even if it isn’t actually seen by the jury, undoubtedly helps dispel the notion that the witness’s version of the facts could have been concocted the week before trial.
D. CONCLUSION.
Properly used, an email message can undercut inconsistent trial testimony and—perhaps more importantly—buttress the credibility of testimony that is consistent with the electronic record. A collection of such messages can frame the chronology of a dispute and take the jury back in mind from the time of trial to the time when the controversy arose. Good trial lawyers see past the discovery headaches and spend appropriate time in trial preparation planning for their admissibility and effective use.
Ray Guy is a Litigation partner and head of Weil’s Litigation practice in Dallas. He concentrates his practice on the trial and supervision of civil litigation in federal and state courts and in arbitrations. For more than 30 years, he has represented a wide range of clients in complex cases, including securities, private equity and hedge fund litigation; class actions; fiduciary duty and partnership disputes; technology litigation; fraud and bad faith litigation; and constitutional law. Mr. Guy, who is admitted to practice in Texas and New York, is Board Certified as a Specialist in Civil Trial Law by the Texas Board of Legal Specialization.
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