Commercial Litigation and Arbitration

Emails as Business Records — Admissibility Standards

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012):

In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records hearsay exception. 43 F.3d 443, 450 (9th Cir. 1994). The court reasoned that "E-mail is far less of a systematic business activity than" other computer generated business records. Id. However, the manner in which businesses utilize email has changed drastically in the eighteen years since Monotype was decided. In fact, in recent years, district court judges within the Ninth Circuit have found emails to be admissible under the business records exception, albeit without much analysis. E.g., Ionian Corp. v. Country Mut. Ins. Co., No. 3:10-cv-0199-ST, 2011 WL 6070442, at *2, *18 (D. Or. Dec. 2, 2011) (admitting emails as business records); Volterra Semiconductor Corp. v. Primarion, Inc., No. C-08-05129 JCS, 2011 WL 4079223, at *7 (N.D. Cal. Sept. 12, 2011) ("[Plaintiff] laid a foundation at trial establishing that the email was admissible under the business record exception to the hearsay rule."); Age Group Ltd. v. Regal West Corp., No. C07-1303BHS, 2008 WL 4934039, at *2-3 (W.D.Wash. Nov. 14, 2008) (excluding email evidence, but only because the proponent failed to lay the foundation to qualify the emails as business records).

Other district courts have closely analyzed emails under the business records exception to implement the exception's purpose. One such case that sets forth a straightforward and coherent test to determine whether emails constitute business records within the meaning of rule 803(6) is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mex., on Apr. 20, 2010, MDL No. 2179, 2012 WL 85447, at *3 (E. D. La. Jan. 11, 2012). There, the court explained:

First of all, the email must have been sent or received at or near the time of the event(s) recorded in the email. Thus, one must look at each email's content to determine whether the email was created contemporaneously with the sender's acquisition of the information within the email. Second, the email must have been sent by someone with knowledge of the event(s) documented in the email. This requires a particularized inquiry as to whether the declarant--the composer of the email--possessed personal knowledge of the information in the email. Third, the email must have been sent or received in the course of a regular business activity, which requires a case-by-case analysis of whether the producing defendant had a policy or imposed a business duty on its employee to report or record the information within the email. Fourth, it must be the producing defendant's regular practice to send or receive emails that record the type of event(s) documented in the email. This would require proof of a policy of the producing defendant to use email to make certain types of reports or to send certain sorts of communications; it is not enough to say that as a general business matter, most companies receive and send emails as part of their business model. Fifth, a custodian or qualified witness must attest that these conditions have been fulfilled — which certainly requires an email-by-email inquiry. Lastly, the objecting defendant is permitted under the rule to argue that the particular email should be excluded due to concerns of lack of trustworthiness, based on the information source underlying the email content or the circumstances under which the email was sent and received. Clearly, there is no across-the-board rule that all emails are admissible as business records.

Id, (Footnotes omitted).

In Lorraine v. Market Am. Ins. Co. Magistrate Judge Grimm of the District of Maryland also sets a high bar for the specificity required of testimony accompanying evidence a proponent wishes to admit under Rule 803(6). 241 F.R.D. 534, 545-46 (D. Md. 2007). He writes:

It is necessary, however, that the authenticating witness provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved . . . as opposed to boilerplate, conclusory statements that simply parrot the elements of the business record exception to the hearsay rule.

Id. Judge Grimm justifies this stance by noting that courts' approaches to emails under the business records exception vary widely, and "[b]ecause it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try." Id. at 585. See Also, In re Vee Vinhnee, 336 B.R. 437, 445 (9th Cir. BAP 2005) (The increasing complexity of computer technology requires a more precise focus because electronic documents are easier to alter after creation); State of N.Y. v. Microsoft, No. CIV A. 98-1233(CKK), 2002 WL 649951, at *14 (D.C.C. Apr. 12, 2002) (to establish a proper foundation, the proponent must establish that the maker and all other participants in the email chain acted in the regular course of business).

The practice of generating and systematically retaining email varies significantly among business entities based on their size, sophistication, and policy. Notwithstanding, the ubiquitous nature of emails that Judge Grimm recognizes inevitably requires the court to admit emails as evidence in a variety of cases. Holding emails to some standard under the business records hearsay exception, as opposed to broadly accepting them as admissible business records, is the best approach. Accordingly, this court adopts the test articulated in Deepwater Horizon and will now apply it to Exhibits G and H.

Applying this test, OTEC has not carried its burden. In Ray's affidavit, she declares, "I do have personal knowledge that [Exhibits G and H] are personnel records that are made and kept in the regular course of OTEC's regularly conducted business activity and are routinely relied on by OTEC in that business activity." Ray Reply Decl. ¶13. Ray does not articulate whether the individuals sending the email have personal knowledge of the events discussed therein; does not put forth evidence of a policy that imposed a business duty on OTEC employees to send and retain emails. Further, Ray did not analyze the applicability of the test on an email-by-email basis. Beyond Ray's declaration, there is not enough evidence on the record to declare the emails business records.

Further, Exhibits G and R can be distinguished from Exhibits B, C, P, Q, and R that the court has already found fall within the business records exception because, while Ray describes those memoranda in similar terms ("those Exhibits are personnel records"), Exhibits B, C, P, Q, and R were formal memoranda issued in conjunction with disciplinary action and performance reviews pertaining to one individual (Rogers). Disciplinary memoranda are designed to be a formal record of disciplinary problems and carry a stronger presumption of accuracy and reliability than email, which is an informal mode of communication that is not inherently reliable. Accordingly, Rogers's motion to strike Exhibits G and R is granted.

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