Commercial Litigation and Arbitration

Email Authentication Standards in New Hampshire (Applying Authentication Rule Identical to Fed.R.Evid. 901)

State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011):

New Hampshire Rule of Evidence 901(a) provides that "[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." The proof necessary to authenticate e-mail messages is an issue of first impression in New Hampshire. We note, however, that the federal rule of evidence is identical to our State rule, compare N.H. R. Ev. 901 with Fed. R. Evid. 901, and we therefore look to federal cases for guidance. See State v. Ross, 141 N.H. 397, 400 (1996).

"The bar for authentication of evidence is not particularly high." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). "The proof necessary to connect an evidentiary exhibit to a defendant may be made by circumstantial evidence." State v. Reid, 135 N.H. 376, 383, 605 A.2d 1050 (1992) (quotation omitted). "The proponent need not rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." Gagliardi, 506 F.3d at 151 (quotation omitted). The State need only demonstrate a rational basis from which to conclude that the exhibit did, in fact, belong to the defendant. Reid, 135 N.H. at 383. Once the evidence is admitted, "the rest is up to the jury." Id. (quotation omitted).

Like other evidence, "[e]-mail messages may be authenticated by direct or circumstantial evidence. An e-mail message's distinctive characteristics, including its contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances may be sufficient for authentication." Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 554 (D. Md. 2007) (quotations omitted); see also N.H. R. Ev. 901(b)(4) (examples of authentication include, "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances"). Moreover, "[t]he contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message." Lorraine, 241 F.R.D. at 554 (quotation omitted). However, "[b]ecause of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness." Id. (quotation omitted); see Gagliardi, 506 F.3d at 151.

Here, the State sufficiently authenticated the e-mails. Regarding State's Exhibit 22 (e-mail describing the May 4, 2008 incident), Assistant Attorney General Carrillo testified that: (1) she was "CC'd" on the e-mail message; (2) the message "was from [the defendant], and ... [it] talked about some of the issues that [Attorney Carrillo and the defendant] had talked about"; and (3) the message came from "," an e-mail address the defendant had previously used to communicate with her. The defendant testified that "" was one of her many e-mail addresses.

In addition, Attorney Newell testified about the contents of the e-mail. She explained that the reference in the e-mail to the text messages being from Jeffrey's personal cell phone number rather than an number was because they "had dealt with that issue in the past, that text messages had seemed to have come from an" She testified that State's Exhibit 22 was basically "follow up to what [the defendant] reported on May 4" to the East Kingston police.

Similarly, Attorney Carrillo testified that she received State's Exhibit 21 (e-mail regarding "BM1 Eppright") from the defendant's "" e-mail address. Attorney Carrillo "remember[ed] the substance" of the e-mail message, "that ... a friend of Jeffrey ... was going to, quote, 'screw [the defendant] over.' " Attorney Carrillo also identified the various recipients of the e-mail, noting that these were "the type of people that would get CC'd on a lot of these [e-mails] from [the defendant]." Additionally, Attorney Newell confirmed that she received State's Exhibit 21 and testified as to its contents.

Next, Attorney Carrillo testified that although she was not familiar with the top portion of State's Exhibit 19 (e-mail regarding alleged additional restraining order violations by Jeffrey), which contained an e-mail to Attorney Newell that Attorney Carrillo was not copied on, she did recognize the bottom half of the e-mail. She testified that the e-mail was sent from "" to her business e-mail address, as well as to the e-mail addresses of Attorneys Newell and Theroux. In addition, Attorney Carrillo described the content of the message, and testified that the e-mail discussed the report the defendant recently made to the East Kingston police regarding e-mail messages she received. Further, Attorney Newell testified that she recalled answering the defendant's inquiry in the e-mail about "getting a case number for the [May 4] report that she made."

Finally, Attorney Theroux testified that she found in her client files an e-mail resembling State's Exhibit 20. She testified that although the format of the printed exhibit was different from the format that was in her electronic files, the content was the same. The e-mail was sent to her business e-mail address by "K. MacDonald Ruggiero," whom she understood was the defendant. Attorney Theroux testified that she did not have reason to believe that someone other than the defendant sent the e-mail. Further, Attorney Newell testified that she recalled responding to this e-mail. Moreover, the defendant admitted to sending the e-mail.

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