Commercial Litigation and Arbitration

Emails Authenticated by Production in Discovery — Evidence on Summary Judgment Usable If It Could be Reduced to Admissible Form at Trial

From United States v. Gray Ins. Co., 2010 U.S. Dist. LEXIS 27652 (N.D. Ga. Mar. 24, 2010):

CCG's argument as to the authenticity of the exhibits is unavailing for several reasons. First, "there is no requirement that evidence be presented in admissible form as long as the evidence would be admissible at trial. The evidence at issue would likely be admissible at trial." Cooper v. Southern Co., 260 F. Supp. 2d 1258, 1272 n. 7 (N.D. Ga. 2003) (Evans, J.) (internal citations and quotations omitted). Moreover, circumstantial evidence can be relied upon to show the authenticity of a document, "including the document's own distinctive characteristics and the circumstances surrounding its discovery." U.S. v. Smith, 918 F.2d 1501, 1510 (11th Cir. 1990). Here, Gray contends, and CCG does not deny, that the Class One and Two emails were produced by CCG during discovery. Because the emails were produced by CCG during the discovery process, the circumstances surrounding their discovery indicate authenticity. See Sklar v. Clough, No. 1:06-CV-0627-JOF, 2007 WL 2049698, at *4 (N.D. Ga. 2007) (Forrester, J.) (deeming emails authentic where produced by one party during discovery and offered by the party opponent against the producing party). Because this court can consider evidence on a summary judgment motion that would be admissible at trial, and the court finds that these documents likely could be authenticated at trial, the court will not strike the emails based on authenticity concerns.

The court is equally unconvinced by CCG's blanket assertion that the Class One emails are hearsay. Again, while courts cannot rely on inadmissible hearsay to decide a motion for summary judgment, courts can rely on evidence that can be "reduced to admissible evidence at trial and reduced to admissible form." Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). "[T]he out-of-court statement . . . must be admissible at trial for some purpose. For example, the statement might be admissible because it falls within an exception to the hearsay or does not constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or is used solely for impeachment purposes (and not as substantive evidence)." *** Gray relies on many of the Class One emails for non-hearsay purposes, like showing the non-existence of a contract or for reasons other than proving the truth of the matter asserted. Furthermore, after a review of the emails, they are likely to be admissible under the business records exception of Rule 803(6) of the Federal Rules of Evidence. The emails generally purport to be sent to or from parties to this litigation or other relevant individuals, such as Code 4 employees. The information in the emails could also be admitted through the testimony of their authors. Plaintiff CCG's motion to strike is DENIED....

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