Commercial Litigation and Arbitration

Email Admissible for Nonhearsay Purpose of Showing Recipient Was Informed of Info It Reflects (Here, Party’s Interpretation of Alleged Contract) — Authenticated by Affidavit of Recipient and Fact Objecting Party Produced It in Discovery

Nola Fine Art, Inc. v. Ducks Unlimited, Inc., 2015 U.S. Dist. LEXIS 17450 (E.D. La. Feb. 12, 2015):

a. Ducks Unlimited's Motion to Strike Plaintiffs' Summary Judgment Exhibits

Ducks Unlimited moves to strike two of plaintiffs' summary judgment exhibits. First, Ducks Unlimited moves to strike an email authored by P.J. Hahn arguing that it is inadmissible hearsay and that plaintiffs have not properly authenticated the email. Second, Ducks Unlimited moves to strike the transcript of a recorded conversation between Michael Hunt, Robert Garrity, and P.J. Hahn arguing that transcript was not certified in accordance with Federal Rule of Civil Procedure 30(f)(1). The Court finds Ducks Unlimited's arguments to be without merit.

Ducks Unlimited first argues that the Hahn email is not competent summary judgment evidence because it is inadmissible hearsay. Hahn's email, dated August 10, 2012, is addressed to Michael Patterson, Ducks Unlimited's 2012 Publicity Chairman. Hahn states, inter alia, that "our agreement was to promote the project through the media to jump start the interest, and then get email blasts to DU [*8]  members (All members) to produce sales." Ducks Unlimited contends that plaintiffs offer the email to prove the terms of the alleged contract, and that the email is therefore inadmissible hearsay. Although not admissible to prove the truth of the contents, the Court finds the Hahn email admissible for the non-hearsay purpose of demonstrating that Ducks Unlimited was aware of plaintiffs' interpretation of the alleged contract. See Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of Am., CIV. A. No. 06-4262, 2009 WL 2382787, at *1 (E.D. La. July 31, 2009) (email admissible for "the non-hearsay purpose of demonstrating that defendant was informed of the information contained in the email"). The Court also overrules Ducks Unlimited's objection to the Hahn email on authenticity grounds. As an initial matter, Michael Hunt, a recipient of the email, provided an affidavit authenticating the email. Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000) ("[E]vidence may be authenticated by testimony of a witness with knowledge that a matter is what it is claimed to be."). Moreover, Ducks Unlimited produced the email to plaintiffs in discovery and therefore cannot seriously dispute the email's authenticity. See John Paul Mitchell Sys. v. Quality King Distribution, Inc., 106 F. Supp. 2d 462, 472 (S.D.N.Y. 2000) (a defendant's act of producing documents in response to a request for production implicitly authenticates the documents produced).


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