Commercial Litigation and Arbitration

Purged Email — Authentication

Email doesn’t linger. It is stored or it evaporates. The government realized this a little late in United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007), a drug conspiracy prosecution. The DEA executed a search warrant to obtain, inter alia, the defendant’s cell phone. The DEA agent found email found on the phone. He testified that he accurately transcribed all emails verbatim, including the time, date and all senders and recipients. The transcription process took days. He did not immediately print out the emails. Two weeks later, when the agent reviewed the phone again, he realized that the contents were no longer stored on it, and when he served a subpoena in the internet service provider, he learned that they had been purged from the ISP’s system as well. The government sought to introduce the written transcript as evidence at trial, and the defense objected because it did not have an opportunity to review the original emails. Held, under the liberal standards of Fed.R.Evid. 901(a), the transcription was held sufficiently authenticated by the testimony of (i) the agent, (ii) one of the co-conspirators, and (iii) perhaps other co-conspirators as to the accuracy of the transcription. In Judge Sean Cox’s words: ‛[T]he government offers testimony from the preparer of the transcript and participants in the original emails. Defendant is free to challenge the credibility of these witnesses, but it goes to the weight of the evidence, not the admissibility.“

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