Authenticating Emails at Trial: Not Always as Easy as It May Seem
As a credit professional, you are asked by your attorney to provide the contents of your credit file to assist in the preparation of a lawsuit involving a contract dispute. You provide the copies of all of the documents that are electronically stored on your company's database concerning the dispute. However, many of the documents, including emails, are foreign to you and others in your company. The recent decision in the bankruptcy case of Second Chance Body Armor addresses what can happen in this situation if those documents are not properly authenticated.
In Second Chance Body Armor, a former manufacturer and distributor of bulletproof vests, the chapter 7 trustee filed 17 counts against Toyobo and its U.S. subsidiary, suppliers of Zylon used by weavers that was then used by Second Chance to make the vests. While questioning a manager from Toyobo on the 39th day of trial, the trustee sought admission of an exhibit -- an interoffice email from an employee of ITOCHU Corporation ad-dressed to five other ITOCHU employees that dealt with ballistics testing.
Toyobo objected to the admission of the trustee's exhibit on grounds that it constituted hearsay and lacked proper authentication and foundation. In an oral bench ruling, the court provisionally admitted the trustee's exhibit. The court held that admission of the exhibit was conditioned upon factual findings at the conclusion of the case that ITOCHU was an agent of Toyobo in connection with the transactions in question. If no agency finding could ultimately be made, or if the document was not authenticated, the court explained that the exhibit would be expressly excluded from consideration and completely ignored by the court.
Rule 901(b) sets forth a non-exclusive list of ways in which the requirement of authentication may be satisfied.
Responding to the court's ruling with permission by the court to supplement its argument, Toyobo reiterated its hearsay objection and argued that the trustee had failed to lay an adequate foundation establishing the authenticity of the document. Toyobo also asserted that, to the extent the court's ruling was based on grounds of potential agency, the document was subject to the attorney-client privilege and should be excluded from evidence on that basis. The court considered Toyobo's arguments, but declined to alter its evidentiary ruling. In large part, the court believed that provisionally admitting the trustee's exhibits was the best way to promote judicial economy.
The issue presented was whether this court should rescind its conditional admission of the trustee's exhibit into evidence over Toyobo's objection that the trustee had failed to lay a proper foundation regarding the document's authenticity.
There are four traditional types of evidence: real, demonstrative, documentary, and testimonial. The basic prerequisites of admissibility of evidence are relevance, materiality, and competence. In general, if the evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.
When documents such as letters, contracts, invoices, wills, certificates and records are presented as evidence by a defendant, or, indeed, the prosecution, in a court of law, they are known as documentary evidence. This evidence can have serious consequences and can help determine the outcome of a case. It is, therefore, essential that documentary evidence is authentic.
Federal Rule of Evidence 901 states the general requirement for authentication of a document. Rule 901(a) provides: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 902 identifies several types of evidence that are "so well recognized as prima facie genuine" that they are considered self-authenticating. For evidence that is not self-authenticating, including e-mail messages, Rule 901(b) sets forth a non-exclusive list of ways in which the requirement of authentication may be satisfied. One of the most common ways to authenticate a document is for the proponent of the document to elicit testimony of a witness with knowledge that the document "is what it is claimed to be." When the document involved is an e-mail communication, a "participant in, or recipient of, that communication" will generally be able to authenticate the communication, so long as the person "was able to perceive who communicated what." Mark D. Robins, Evidence at the Electronic Frontier: Introducing E-mail at Trial in Commercial Litigation, 29 Rutgers Computer & Tech. L.J. 219, 226 (2003).
