Email Admissibility — Hearsay — Rules 807 (Catchall Exception) and 803(1) (Present Sense Impression)

The plaintiff in Trade Finance Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008), was suing for a commission. Plaintiff TRP’s entitlement to the commission depended on characterization of the deal that the defendant (AAR) entered into Northwest Airlines (NWA). The admissibility of two emails was challenged on hearsay grounds. The first was sent by one email by one NWA employee to another, and was offered by plaintiff TRP “to demonstrate that NWA ‘strongly disfavored new long term contracts with AAR.’” Held, offered for this purpose, “it appears that the e-mail is not offered for the truth of the matter asserted in Johnson's communication,” and, therefore, is non-hearsay within Fed.R.Evid. 801.

The second email was sent by plaintiff TFP’s President and reported a conversation with an NWA employee — an extrajudicial statement contained within an extrajudicial statement. The plaintiff pointed to the catchall exception, Fed.R.Evid. 807, evidently with respect to the embedded statement. The Court first outlined the criteria for admissibility under Rule 807:

Under Rule 807, such communication is admissible only if it: (1) has circumstantial guarantees of trustworthiness equivalent to statements covered by the other hearsay exceptions; (2) is offered as evidence of a material fact; (3) is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (4) serves the interests of justice. The Rule is to be used only "sparingly" and reserved for "exceptional cases."

The Court held this test was not satisfied. Among other things, the opinion observes: “Significantly, there is no evidence that Reidlinger [the NWA speaker] was actually a decision maker with respect to the NWA-AAR Contract [on which the commission was claimed], which minimizes the impact of his perspective.”

With respect to the email itself (as distinct from the embedded statement), the plaintiff relied on the present sense impression exception contained in Rule 801, which excludes from the hearsay rule any "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Held: “Here, as in Schindler[ v. Joseph C. Seiler & Synthes Spine Co., 474 F.3d 1008, 1011 (7th Cir. 2007)], the statement in question is a calculated narration and TFP has presented no admissible evidence regarding immediacy. Accordingly, it is not a present sense impression.”

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