Commercial Litigation and Arbitration

Emails as Verbal Acts

Turner v. Am. Building Condo. Corp., 2014 U.S. Dist. LEXIS 15804 (S.D. Ohio Feb. 7, 2014):

Insofar as defendants suggest that evidence introduced into the record for the first time in response to a motion for summary judgment cannot be considered by the Court in resolving the motion, defendants' argument is not well-taken. Further, defendants have not specified which of the documents submitted by plaintiff are not relevant to his claims and why they are not relevant. Finally, defendants do not challenge the authenticity of the emails and other correspondence submitted by plaintiff, and there is no apparent reason to question the authenticity of these communications. Nor do the e-mails appear to be hearsay as defendants generally assert. They are not offered, and the Court will not consider them, for the truth of the matter asserted. Rather, the emails "are verbal acts, offered to show what was said when and by whom. The statements themselves are the evidence, not the truthfulness or lack thereof of what the statements purport to express." See Midwest Retailers Ass'n, Ltd. v. City of Toledo, 582 F. Supp.2d 931, 935 (N.D. Ohio 2008) (citing Dorchy v. Jones, 320 F. Supp.2d 564, 578 (E.D. Mich. 2004)). Similarly, documents related to proceedings before administrative agencies (Exhs. D, J, K) will be considered only for the timing of the matters before the Court.

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