Commercial Litigation and Arbitration

Email Authentication Other than through the Author

From EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009):

This case raises questions about the scope of an employment agency's obligations under the Americans with Disabilities Act. Zachary Schaefer is a deaf person who sought employment unsuccessfully through defendant Olsten Staffing Services Corp.***

There is no dispute that in March 2007, Olsten identified Schaefer to Main Street, but it is questionable whether Olsten's actions can be described accurately as a referral or a recommendation. The EEOC has submitted an e-mail dated March 5, 2007 from Olsten's staffing specialist to Main Street in which she stated:

We had an applicant in who was referred to us by Cheryl. He wants to work out in the production area but our only hesitation is that he is deaf. Would we be able to place him or is that too much of a concern for you? He has a good work history and can handle the lifting. Please let me know what your thoughts are on that.

Main Street responded, "I would have to say no. not at this time."

Olsten argues vigorously that this e-mail is not properly before the court because the EEOC failed to authenticate it and because it is hearsay. *** I conclude that this e-mail is admissible evidence that the court may consider when deciding Olsten's summary judgment motion.

The EEOC authenticates the e-mail through the testimony of Sue Horne, who is the human resources manager for Main Street Ingredients and who personally retrieved the e-mail from Main Street's computer. Olsten argues that only the author of the e-mails may authenticate them, but cites no authority for this proposition and assumes incorrectly that a witness must have personal knowledge of the contents of a document in order to authenticate it. If Olsten were correct, then e-mails would be inadmissible in any case in which the purported author denied their accuracy. The rules of evidence are not so punctilious.

Under Fed. R. Ev. 901, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." See also Thanongsinh v. Board of Educ., 462 F.3d 762, 779 (7th Cir. 2006) ("Rule 901 does not erect a particularly high hurdle.") Thus, to authenticate the e-mail, the EEOC need only adduce evidence that the document is an e-mail between Olsten and Main Street, not that the contents of the e-mail are the actual thoughts of the author. Testimony from someone who personally retrieved the e-mail from the computer to which the e-mail was allegedly sent is sufficient for this purpose. United States v. Hampton, 464 F.3d 687, 690 (7th Cir. 2006) (custodian of record may authenticate). Further, as the EEOC observes, even without a custodian, e-mails may be authenticated through the e-mail addresses in the headers and other circumstantial evidence, such as the location where the e-mail was found. United States v. Vaghari, 2009 U.S. Dist. LEXIS 64793, 2009 WL 2245097, *8-9 (E.D. Pa. 2009); United States v. Safavian, 435 F. Supp. 2d 36, 39-42 (D.D.C. 2006).

Share this article:


Recent Posts