Email Admissibility on Summary Judgment — Authentication vs. Authenticatability

From Kenawell v. Dubois Business College, Inc., 2008 U.S. Dist. LEXIS 26730 (W.D. Pa. March 20, 2008):

• “Rule 803(6) of the Federal Rules of Evidence states that records that are kept in the course of regularly conducted business activity, not made for purposes of litigation, not indicating a lack of trustworthiness, and are made at or near the time of the reported events, fall under the hearsay exception and are admissible. It is clear from Syktich's Affidavit that the Incident Report was made for business purposes alone, that is, as a procedure engaged in when an employee reports a case of sexual harassment.”

• “The same can be said for Gracey's submitted statement and the email correspondence between Gracey and Plaintiff. Although both documents were submitted as attachments to Syktich's affidavit and therefore, initially, acceptable for consideration for summary judgment, they are in fact hearsay. Both documents are not based on Syktich's personal first-hand knowledge and furthermore, there is no affidavit or testimony of record by Gracey attesting to the contents of the documents. However, this lack of authentication and presence of hearsay can be cured at the time of trial should Gracey testify as to her personal knowledge of the documents. See Lexington Ins. Co. v. Western Pennsylvania Hospital, 423 F.3d 318, 329 n. 6 (3d Cir. 2005)(citations omitted). Therefore, despite an absence of authentication and the presence of hearsay, these matters may be a part of the summary judgment record before the Court. Therefore, these documents are admissible evidence."

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