There is a debate in the case law as to when and whether emails generated in a business setting constitute business records within Federal Rule of Evidence 803(6) (see Internet & Email Evidence on the Recent Articles page). The defendants in United States v. Stein, 2007 U.S. Dist. LEXIS 76201 (S.D.N.Y. Oct. 15, 2007) (the KPMG tax shelter prosecution) objected to certain emails that the prosecution offered as business records, contending that the government was required to "show[] that the e-mails at issue were created pursuant to established company procedures for the systematic or routine making of company records." Judge Lewis A. Kaplan rejected the contention, holding that the standard was substantially lower:

[R]egularity of making such records and of the business activity is all that is required. Although the phrase "business duty" appears frequently in Rule 803(6) cases, the defendants read the phrase too narrowly. The phrase "business duty" is used interchangeably with phrases such as "[being] part of a business routine" or "[acting] in the regular course" to describe the requirement that the declarant be someone inside the business, not a third party.

[Citations omitted.] The business-duty requirement traces to the New York Court of Appeals' decision in Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930); the phrase "business duty" is not found in Rule 803(6) or even in Johnson v. Lutz (which dealt with statements made by third party witnesses to a police officer concerning an auto accident). Yet even the New York Court of Appeals traces the phrase to that decision. See, e.g., People v. Cratsley , 86 N.Y.2d 81, 90, 629 N.Y.S.2d 992, 997 (1995). Judge Kaplan's decision reflects that, to the extent "business duty" is at all apt, the word "duty" may be broadly construed.