New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Email Admissibility — Every Level of Hearsay Must Be Addressed — Emails Received by Reporter from Counsel to a Party, While Business Records of Reporter, Are Hearsay as to Counsel’s Statements (Admissions Not Addressed)

Download PDF

Am. Home Assur. Co. v. Greater Omaha Packing Co., 2014 U.S. Dist. LEXIS 51287 (D. Neb. April 14, 2014):

This matter is before the Court on the motion of the counterclaim plaintiff Greater Omaha Packing Company, Inc., (Filing No. 434) for the reconsideration of the Court's April 4, 2014, memorandum opinion (Filing No. 432) and order and judgment (Filing No. 433) dismissing its counterclaim. Briefs have been filed by all parties. Oral arguments were held on April 9, 2014.

I. BACKGROUND

This case involves Greater  [*2] Omaha Packing Company, Inc. ("GOPAC"), a meat supplier, and Cargill Meat Solutions Corporation. ("Cargill") a meat producer/distributer, and its insurer, American Home Assurance Company. GOPAC and three other meat suppliers delivered hamburger makings to Cargill, which in turn used the meat to produce hamburger patties. In 2007, those patties were distributed in the United States and led to an E. coli outbreak. An investigation traced the E. coli back to Cargill.

Cargill hired Shawn Stevens, Esq., to defend against the claims of those who fell ill from consuming Cargill's burgers. During the course of his defense of Cargill, Mr. Stevens became aware of facts which led Cargill to file the instant action against GOPAC for essentially supplying Cargill with meat contaminated with E. coli in violation of its contract and warranties.

Some time after this discovery in 2009, Mr. Stevens was contacted by New York Times reporter, Michael Moss. The contents of their conversations, in part, led to Mr. Moss writing a Pulitzer Prize winning article (the "Article") about the meat industry and the 2007 outbreak. In the Article, Mr. Moss attributed statements to Mr. Stevens. These statements are the  [*3] basis of GOPAC's counterclaim of tortious interference with business relationships and expectancies (hereinafter "Tortious Interference"). The lack of evidence regarding these comments is also the basis of the Court's previous order granting summary judgment on GOPAC's claim.

In its summary judgment motion, GOPAC relied upon the Article and three e-mails to establish what Mr. Stevens said to Mr. Moss. These documents contain as many as three levels of hearsay. After review of the motion, briefs, and indices of evidence, the Court determined that GOPAC lacked admissible evidence to prove "Mr. Stevens made the comments to Mr. Moss that the Article attributes to him." Filing No. 432, at 9. GOPAC has now filed a motion for reconsideration on various grounds including whether a stipulation nullifies the Court's reasoning, whether the Business Record Exception covers the hearsay statements in question, and whether the Court applied the wrong legal standard in granting summary judgment.

***

A.  [*5] Stipulation

The Court begins its analysis on the issue of whether the parties stipulated to the admissibility of the Article and Moss E-mails. The Court finds that Mr. Coyle and Mr. Bylund stipulated to Mr. Bylund's offer: a mutual stipulation "with respect to authentication, foundation for documents that [the parties] produced." Filing No. 364-4, at 3. Mr. Bylund's offer did not mention the Business Record Exception and the Court finds the parties did not stipulate that all documents the parties produced fell into the Business Record Exception.3

3   The Court notes GOPAC made objections to documents which GOPAC or Cargill produced in discovery on the basis of hearsay. Filing No. 403-1. It follows that if the stipulation were as broad as GOPAC asserts, GOPAC could not have made those objections.

Even if the Court found that the parties had established the Business Record Exception for all documents which Cargill produced, either by establishing the foundational elements of the exception or by stipulation, such a finding would not cover hearsay within those documents, which would require separate exceptions for each level of hearsay. See Johnson v. Lutz, 253 N.Y. 124, 128, 170 N.E. 517 (N.Y. 1930)  [*6] ("It was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto."); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 140 (Tex. 2004) ("consumer complaints in a company's files are generally hearsay within hearsay, and require their own exception in addition to that for business records generally."). The breadth of the stipulation would not extend to the second level of hearsay, the statements in the Moss E-mails, because the mere presence of e-mails in a company's server is insufficient to establish that all the contents of those e-mails fall within the Business Records Exception. E.g., In re Oil Spill, MLD No. 2179, 2012 U.S. Dist. LEXIS 3406, 2012 WL 85447, at *3 (E.D. La. Jan. 11, 2012).

B. Records of a Regularly Conducted Activity

The issue before the Court is whether Mr. Moss's statements within the e-mails are admissible hearsay. In these e-mails, Mr. Moss claims Mr. Stevens made varying statements regarding GOPAC's and Cargill's liabilities for the E. coli outbreak. See Exhibits HHH, JJJ, and VVV. GOPAC wishes to admit into evidence these out-of-court statements to prove Mr. Stevens  [*7] made these comments to Mr. Moss. Therefore, the e-mails are being offered to prove the matter asserted in the e-mails. Fed. R. Evid. 801(c)(1). The parties argue as to whether the business record exception applies to those statements.

The "Business Record Exception" is Federal Rule of Evidence 803(6). The second element of the Business Records exception requires the record was kept in the course of a regularly conducted activity of a business. Courts analyze the business of the out-of-court declarant when determining whether the out-of-court statement was made in the regular course of its business. See e.g., G. Michael Fenner, The Hearsay Rule, pp. 169-70, 172-73 (3d ed. 2013); United States v. Vigneau, 187 F.3d 70, 75 (1st Cir. 1999) (citing Johnson, 253 N.Y. 124, 170 N.E. 517)). Cargill is not the out-of-court declarant for the Moss E-mails. GOPAC has not argued and cannot establish the regularity of Mr. Moss's e-mails nor whether these e-mails are records. Thus, Exhibits JJJ, HHH, and VVV do not fall into the Business Record Exception. GOPAC does not offer, and the Court cannot find, another exception under which to allow the Moss E-mails or the Article, so those documents are inadmissible  [*8] hearsay. Therefore, the Court will not reconsider the weight of this evidence in the Court's April 4, 2014, Order.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice