Commercial Litigation and Arbitration

Email Authentication — Act of Producing Emails Implicitly Authenticates Them — Circumstantial Authentication (Factors)

Finnegan v. Myers,2015 U.S. Dist. LEXIS 119715 (N.D. Ind. Sept. 8, 2015):

Exhibit 26

The State Defendants also argue that Exhibit 26 (DE #224-26) should be stricken in its entirety because it contains inadmissible hearsay. The Plaintiffs disagree and assert that the information is being offered "to show the information that was available to, and received by, the State Defendants during their investigation regarding Jessica's death, not for the truth of the underlying statements." They contend that:

   [t]he fact that the State Defendants possessed these documents is directly relevant to the issue of whether the State Defendants behaved recklessly, a key issue in this case. The relevance does not depend on whether the underlying statements in the documents are true but on the fact that the Defendants were provided this information when they engaged in the alleged course of misconduct.

(DE #264, p. 9.) [*10]  For much of the same reasons listed above, the Court agrees with Plaintiffs that Exhibit 26 need not be stricken. Again, not only is the State Defendants' request overly broad, it is unnecessary; the Court is capable of considering the evidence under the applicable federal rules and giving it the weight it deems appropriate.

As far as authentication is concerned, the Federal Rules of Evidence provide simply that, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Rule 901 provides several examples of proper authentication methods, including testimony of a witness with knowledge, expert or trier of fact comparisons, distinctive characteristics, and evidence about public records; the Rules acknowledge that the list is not complete. Fed. R. Evid. 901(b). "Rule 901 requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence." United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997). Additionally, Rule 902 notes that certain evidence, including but not limited to certified copies of public records, official publications, newspapers and periodicals, commercial paper, and certified domestic records of a regularly conducted activity, is [*11]  self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. Fed. R. Evid. 902.

The Seventh Circuit has noted that "[a]uthentication relates only to whether the documents originated from [their purported source]; it is not synonymous to vouching for the accuracy of the information contained in those records," and the "very act of production [i]s implicit authentication." United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982); see also Kasten v. Saint--Gobain Performance Plastics Corp., 556 F. Supp. 2d 941, 948 (W.D. Wis. 2008) (rejecting authenticity challenge at summary judgment as disingenuous where the challenged e-mails "were documents produced by defendant during discovery"); Fenje v. Feld, 301 F.Supp.2d 781, 809 (N.D. Ill. 2003) ("[d]ocuments produced by an opponent during discovery may be treated as authentic."); In re Greenwood Air Crash, 924 F.Supp. 1511, 1514 (S.D. Ind. 1995) ("Production of a document by a party constitutes an implicit authentication of that document."). As to emails specifically, the Seventh Circuit has acknowledged that they may be authenticated via circumstantial evidence such as viewing the content of the email in light of the factual background of the rest of the case and identifying the sender and/or recipient by unique email address. United States v. Fluker, 698 F.3d 988, 999-1000 (7th Cir. 2012); see also Fenje, 301 F.Supp.2d at 809 ("E-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; [*12]  comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated.").

The State Defendants do not argue that any of the documents are not what they purport to be or that they cannot be presented in a form that would be admissible at evidence. Based on the rules outlined above and the fact that the evidence was stipulated to by the parties for purposes of state court review (see also DE #264-1; DE #264-3), a prima facie showing of genuineness has been made; the Court will leave it to the trier of fact to determine the true probative value of the evidence during trial. See Olson, 750 F.3d at 714 ("We note that the Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form.") (emphasis in original). Accordingly, the motion to strike Exhibit 26 is DENIED.


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