Commercial Litigation and Arbitration

Email Evidence — Circumstantial Authentication (7th Circuit)

Finnegan v. Myers, 2015 U.S. Dist. LEXIS 119517 (N.D. Ind. Sept. 8, 2015):

This matter is before the Court on Defendant Laskey's Motion for Summary Judgment, filed by Defendant, Antoinette Laskey, on October 6, 2014 (DE #195), and Defendant Laskey's Motion to Strike Inadmissible Testimony and Documents from Plaintiffs' Designated Evidence Submitted [*2]  in Support of Plaintiffs' Corrected Response to Defendants' Motions for Summary Judgment, filed by Defendant, Antoinette Laskey, on November 21, 2014 (DE #261). For the reasons set forth below, both motions are DENIED.


Plaintiffs have sued several defendants in this case, including Dr. Antoinette Laskey ("Dr. Laskey"), a licensed physician hired by the Pulaski County Department of Child Services ("DCS") to give a medical opinion as to whether the death of Plaintiffs' 14-year old daughter, Jessica Salyer ("Jessica"), was due to accident or parental abuse. Dr. Laskey filed the current motion for summary judgment, arguing she is not a proper party to the action because she did not act under "color of law," she did not violate Plaintiffs' constitutional rights, and because she is entitled to immunity. Plaintiffs controvert each of these claims.


Preliminary Evidentiary Issues

Dr. Laskey has filed a motion to strike various documents attached in support of Plaintiffs' response in opposition to Defendants' motions for summary judgment. In essence, Dr. Laskey takes issue with Plaintiffs' counsel's attempt to authenticate [*4]  the disputed documents via his own Declaration because he does not have the requisite personal knowledge of their authenticity to do so. Dr. Laskey lists forty exhibits and argues generally that the exhibits are hearsay and that "[n]o witness with personal knowledge of the contest (sic) of these exhibits has authenticated the exhibits." She also argues that the State Fatality Review Team Privilege Log is irrelevant and speculative, that the invoices and check for Dr. Laskey's services and deposition lack the proper foundation to qualify as business records under the hearsay exception, and that the Board Certification on Child Abuse Pediatrics and AAP Professionalism in Pediatrics Statement of Principles are from treatises and are hearsay. Plaintiffs respond by arguing that Dr. Laskey has misstated the procedural requirements at the summary judgment stage regarding authentication and is relying on outdated case law to support her arguments. Plaintiffs point out that Dr. Laskey does not assert that any of the documents in question are not what they purport to be or that they cannot be presented in a form that would be admissible in evidence. In her reply brief, Dr. Laskey doubles down and [*5]  states that "[t]he straightforward issue here is that Plaintiffs' Counsel's Declaration cannot authenticate or render admissible for purposes of summary judgment those documents previously identified in Dr. Laskey's Motion to Strike. This improper authentication cannot be used by Plaintiffs to create an issue of material fact and these documents should be stricken." (emphasis in original).

On a motion for summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2) (emphasis added). "In other words, the Court must determine whether the material can be presented in a form that would be admissible at trial, not whether the material is admissible in its present form." Stevens v. Interactive Fin. Advisors, Inc., 2015 WL 791384, *2 (N.D. Ill. Feb. 24, 2015); see also Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) ("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).

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 [*6]  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 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 [*7]  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; 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 Court agrees with Plaintiffs that Dr. Laskey has not adequately argued 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, and, as such, her motion fails as a matter of law. Even looking to the merits, to the extent that Dr. Laskey objects to the evidence [*8]  on grounds of authenticity, Plaintiffs have provided adequate support at this stage that the evidence is or can easily be authenticated by source. (See DE #265, pp. 8-9.) A prima facie showing of genuineness has been made, and the Court will leave it to the trier of fact to determine the true probative value of the evidence.

Furthermore, it is the function of the Court, with or without a motion to strike, to carefully review the evidence and to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement. See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). Motions to strike are heavily disfavored, and are usually only granted in circumstances where the contested evidence causes prejudice to the moving party. Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). This Court has sifted through the voluminous evidence and has considered it under the applicable federal rules, giving each piece the credit to which it is due. For example, the Court has determined relevancy concerns pursuant to Federal Rules of Evidence 401 and 402 and has evaluated potential hearsay pursuant to the exceptions and exemptions found within Federal Rules of Evidence 801-805. The Court has also kept in mind that hearsay [*9]  is defined as out-of-court statements "offer[ed] in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c); United States v. Rettenberger, 344 F.3d 702, 707 (7th Cir. 2003). Evidence presented for purposes other than to prove the truth of the matter asserted is not hearsay and has not been treated as such. Accordingly, the Court DENIES the motion to strike as unnecessary.

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