Commercial Litigation and Arbitration

Emails as Business Records — Business Duty Requirement

Beechwood Restorative Care Center v. Leeds, 856 F. Supp. 2d 580 (W.D.N.Y. 2012):

H. Emails from Non-parties

Defendants object to another forty-three exhibits that are copies of emails from non-parties. Defendants contend that these are not relevant and that they are inadmissible hearsay.

Plaintiffs seek to admit sixteen of these documents as statements by agents of the defendants. They further contend that two emails, by DOH employee Lisa Cahill, are admissible as business records under Rule 803(6).***

"[A]dmissibility under Rule 803(6) requires both that a [document] have been 'kept in the course of a regularly conducted business activity' and also that it was the 'regular practice of that business activity to make the [document] ... .'" United States v. Freidin, 849 F.2d 716, 719-20 (2d Cir. 1988) (quoting Rule 803(6)).

***[A] proper foundation must be laid before a document can be admitted. Provided that plaintiffs can meet that foundational requirement at trial, these exhibits are not barred by the hearsay rule. See Penberg v. HealthBridge Mgmt., 823 F. Supp. 2d 166, 2011 U.S. Dist. LEXIS 119564, 2011 WL 4943526, at *17 (E.D.N.Y. 2011) ("A party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record") (quoting Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, No. H-06-1330, 2008 U.S. Dist. LEXIS 37803, 2008 WL 1999234, at *12 (S.D.Tex. May 8, 2008)); Park W. Radiology v. CareCore Nat'l LLC, 675 F.Supp.2d 314, 333 (S.D.N.Y. 2009) ("Though an email may satisfy the business records exception under appropriate circumstances, Plaintiffs do not show that the ... emails qualify" because the "employees were not under an obligation to create the emails as a record of regularly conducted business activity.").

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