Commercial Litigation and Arbitration

Third Party Emails Produced by Party Sufficiently Authenticated by Act of Production when Offered by Opponent But Hearsay / Admissibility Objections Must Separately Be Satisfied

Broadspring, Inc. v. Congoo, LLC, 2014 U.S. Dist. LEXIS 177838 (S.D.N.Y. Dec. 29, 2014):

Plaintiff's second motion in limine seeks to exclude nine e-mails that were sent to Broadspring or Mindset Interactive employees by third-party software distributors with whom they once conducted business. The motion is GRANTED, except insofar as an e-mail is necessary to provide context for an admissible statement by Broadspring (or its agent), in which case the Court will give a limiting instruction that the e-mail is to be considered only for context and not for its truth. To the extent they are offered for the truth, the e-mails are plainly hearsay, substantially for the reasons stated by Plaintiff in its memorandum of law. (Pl.'s Mem. Supp. Pl.'s Mots. In Limine 5-6). Notably, in arguing otherwise, Defendants do not rely [*9]  on any of the hearsay rules or case law interpreting those rules. Instead, they cite the fact that Broadspring produced the documents in this litigation and some of the documents in response to an FTC subpoena. (Defs.' Mem. Law Opp'n Pl.'s Mots. In Limine 7-9) Those facts may be relevant for purposes of authentication, but they do not overcome the hearsay problems with the evidence.

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