Email Admissibility — Authentication vs.Hearsay

The defendant in State v. Sherrills, 2008 Ohio 1950, 2008 Ohio App. LEXIS 1662 (Ohio App. April 24, 2008), was convicted of unauthorized use of a computer — belonging to her employer, a bank — for emailing to her personal email account confidential financial information of the bank’s customers. The prosecution established that the defendant sent the emails containing the confidential information by offering evidence that the emails because only she had the login and password used to use the computer at the time the emails were sent. The Court held that the emails were business records, under Ohio Rule of Evidence 803(6):

In his capacity as the [bank’s] IT Security Manager, Zuendel testified that all e-mails received or sent, including attached documents, are stored on Deep Green's [the bank’s] exchange server in the normal and ordinary course of business. At trial, Zuendel testified in detail about the interface of the exchange server and an employee's. workstation. Zuendel testified that all e-mails received or sent, first go through Deep Green's exchange server. The person receiving or sending an e-mail has to connect to the exchange server from their work station through Microsoft Outlook in order to read or compose an e-mail.

Zuendel testified that Deep Green conducts its business primarily through the internet and corresponds with their clients largely through e-mails. Thus, the record of all e-mail received or sent, including attached documents, are kept in the normal course of business. Zuendel explained that once the e-mails were discovered, he was able to copy them from where they were stored on Deep Green's exchange server to a folder located on his computer. Zuendel testified that once the e-mails and attachments were copied to his computer, he printed the e-mails.

We conclude that Zuendel's testimony demonstrated that he was familiar with the records of e-mails Deep Green kept in the ordinary course of business and the procedure to retrieve, transmit, and store the e-mails. Zuendel also had personal knowledge as to the retrieval of the e-mails after the discovery. Based on the foundation as established by Zuendel, the e-mails were admissible under the business records exception to the hearsay rule.

As I read this summary, the testimony actually went only to authentication, not hearsay. There was no hearsay issue because, once the emails were established to have come from the defendant, they were admissions. In all events, there was no hearsay issue because the emails were not offered for the truth of the matters asserted. The transmission of the confidential information was an act, verbal or nonverbal.

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