Commercial Litigation and Arbitration

Burden of Proving Alteration of Email Evidence — Best Evidence Issues under Fed.R.Evid. 1008

Nelson v. Levy Home Entm’t, LLC, 2012 U.S. Dist. LEXIS 15320 (N.D. Ill. Feb. 8, 2012):

Nelson testified that in her e-mail to Donohue, she wrote at the end that she "did not want to end up in jail like AMS employees or Adam Zoldan and his employees or something to that [e]ffect." Def. Ex. 3 at 42. Nelson also notes that Donohue stated during his deposition that if he had received an e-mail with such a statement, he would have immediately taken it to Zoldan and Kloster. Pl. Ex. L at 19-20. He stated that he would have done this because such statements would have been "ridiculous" and "inappropriate." Id. at 20. Nelson suggests, without coming right out and saying it, that because she mentioned the possibility of going to jail in her e-mail to Donohue, he must have told Kloster and Zoldan about her refusal to misuse co-op funds.

At his deposition, Donohue denied that the e-mail ever contained any mention of AMS or going to jail. Id. at 19-20. He also stated that Nelson never told him that she believed taking co-op funds to profit Levy was improper or illegal. Id. at 11. CEO Kloster testified that she never heard that Nelson had mentioned anything about going to jail and that no one had approached her (Kloster) about problems with the way that Levy handled co-op funds. Def. Ex. 2 at 65-66, 179. In her deposition, Nelson acknowledged that, other than in the e-mail, she had never written anything that memorialized his allegedly improper instructions, and that she had never told anyone else about Donohue's instructions. Def. Ex. 3 at 33, 42. Thus Nelson's contention that Kloster, Zoldan, or others involved in the termination decision were aware of her alleged refusal to misuse co-op funds is premised on, and only on, her testimony about what the e-mail originally said.

No copy of the e-mail presented by the parties includes any mention of AMS or going to jail. Generally, a party may prove the contents of a writing, such as Nelson's e-mail, only by producing the document itself. Fed. R. Evid. 1002; see Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 (7th Cir. 2004) (district court could properly strike affidavit that quoted document without attaching copy of it); Cacique, Inc. v. V&V Supremo Foods, Inc., No. 03 C 4230, 2004 WL 2222270, at *2-3 (N.D. Ill. Sept. 30, 2004) (at summary judgment, striking parts of declaration that attempted to describe the contents of specific documents). Nelson claims, however, that Levy altered the original e-mail. Other evidence of the contents of the e-mail is admissible if "all the originals are lost or destroyed." Fed. R. Evid. 1004(a). Accordingly, under Federal Rule of Evidence 1008, the Court must determine whether the original e-mail has been destroyed by alteration, which is what is required to make admissible Nelson's testimony regarding its purported contents. Nelson must show this by a preponderance of the evidence. United States v. Tatum, 548 F.3d 584, 587 (7th Cir. 2008); see United States v. McGaughey, 977 F.2d 1067, 1071-72 (7th Cir. 1992) (noting that district court properly found original document was destroyed); Fed. R. Evid. 104(a), Advisory Committee Notes on Proposed Rule ("To the extent that these [admissibility] inquiries are factual, the judge acts as a trier of fact.").

Beyond Nelson's own testimony that she originally mentioned AMS and going to jail in her e-mail to Donohue, she offers the affidavit of Daniel Sullivan, an information technology manager, to prove that the e-mail was altered. Sullivan states in an affidavit that the e-mail, which was sent on August 5, 2008, contains metadata showing that someone altered it on August 12, 2008. ***. He provides a copy of the metadata, which indicates that it was modified by Nelson, or someone using her log-in information. *** Sullivan's affidavit and the metadata do not indicate how the e-mail was modified or if the modification had anything to do with deleting a reference to going to jail or AMS.

Levy argues that the Court should not consider Sullivan's affidavit because Nelson never disclosed him as an expert witness, and thus Levy never received an expert report as required by Federal Rule of Civil Procedure 26(a)(2) or any other notice of his conclusions prior to Nelson's filing of her summary judgment response. There is merit to Levy's contention. But even were the Court to consider Sullivan's affidavit together with Nelson's testimony, Nelson has not provided evidence sufficient to show that the e-mail was altered by someone other than her in the way she suggests.

The text of the e-mail also strongly suggests that the e-mail never had a statement about jail in it. The e-mail primarily justifies Nelson's high spending on promotional events. It includes two statements in which Nelson indicates that publishers would be unhappy if Levy turned a profit on promotional events, but no statement, or even a hint, that she believed that profiting from those events would be criminal. Id. at 909-002-003. Indeed, Nelson indicates in the e-mail that she previously had generated a profit for Levy on some promotional events and stopped only when publishers started demanding detailed expense reports. Def. Ex. 9 at 909-003. If Nelson were concerned that following Donohue's instructions might lead to imprisonment, it is unlikely that she would not have admitted that she had done exactly what he asked in the past. Nelson concluded the e-mail by suggesting that Donohue not change the way promotional spending was handled by requiring her to reduce promotional expenses, but that she would ultimately do whatever he said. Id. at 909-003-004. It would not make sense for Nelson to write in what she claims was the second-to-last paragraph of the e-mail that she would do whatever Donohue told her to do, and then to conclude the e-mail by stating that she did not want to go to jail for following his instructions.

It is also unclear why the e-mail would have been modified on August 12. Nelson ask[s] the Court to conclude that someone at Levy was deleting certain sections of her email while she still worked at Levy. But Kloster did not confront Nelson with the results of the investigation until September 2, and it was not until September 12 that Nelson wrote an e-mail to Kloster, Keiler, and Jubach indicating that she would not admit guilt or agree to retire. Def. Ex. 9 at 388.

When Nelson forwarded the e-mail to Keiler, on September 2, the forwarded version did not contain the language that Nelson says was deleted. Yet Nelson seemingly did not notice this, because she made no mention of it to Keiler (in the e-mail or otherwise) or to anyone else. Rather, she told Keiler only that it explained why her expenses were high; she did not mention co-op funds or jail to him. Def. Ex. 9 at 909-005.

The Court finds that Nelson has failed to show by a preponderance of the evidence that Nelson's e-mail to Donohue was altered to remove references to jail or AMS. Because such a finding is a necessary predicate to admission of testimony by Nelson about the e-mail's purported contents, the Court concludes that her testimony about the contents is inadmissible. Fed. R. Evid. 1002. Because there is no admissible evidence to show that Nelson's e-mail mentioned jail, no reasonable jury could find that Donohue took the e-mail to Kloster and thus told Kloster about Nelson's refusal to follow his improper instructions.

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