Commercial Litigation and Arbitration

Email Evidence — The Admissibility of Emails as Business Records “Is Not a Clear-Cut Issue” — Email Created within a Business Entity Does Not, for That Reason Alone, Satisfy the Business Records Exception — Good Quotes

Kloeckner v Perez, 2014 U.S. Dist. LEXIS 138009 (E.D. Mo. Sept. 30, 2014):

Plaintiff objects to the admission of these exhibits "because they relate to actions taken after Plaintiff left the Department and after S. Eischen, S. Newman, and G. Newman were aware of Plaintiff's EEO compliant to include allegations of gender discrimination[.]" In response, Defendant points out Plaintiff's Exhibit List includes several documents dated after plaintiff left the Department.

Because the admissibility of this evidence will turn on the particular facts specific to each document (including the circumstances surrounding their creation), the Court is unwilling at this stage to make a definitive ruling. The admissibility of e-mails (and by inference, memoranda) as business records exempt from hearsay exclusion is not a clear-cut issue. Multiple courts have determined, "An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule." U.S. v. Cone, 714 F.3d 197, 221 (4th Cir. 2013) (citing Morisseau v. DLA Piper, 532 F.Supp.2d 595, 621 n. 163 (S.D.N.Y. 2008). The Court will consider objections pertaining to these exhibits as the parties present evidence or before [*34]  they present evidence when a party requests an advance ruling. Accordingly, Plaintiff's Objection is held in abeyance.

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