Fox v. Leland Volunteer Fire/Rescue Dept., Inc., 2015 U.S. Dist. LEXIS 30583 (E.D.N.C. Mar. 11, 2015):

Plaintiff, formerly a paid lieutenant with defendant Leland Volunteer Fire and Rescue Department ("Leland") from June 2008, until January 2011, commenced this action by complaint dated December 21, 2012. Plaintiff sues defendant Leland and defendant John [*2]  Grimes ("Grimes"), her former supervisor, for violations of Title VII of the Civil Rights Act, 42 U.S.C. §§2000e et seq., and certain Constitutional violations, where defendant Leland is a state actor. In particular, plaintiff alleges (1) defendants retaliated against her by firing her after she reported sexual harassment from a co-worker, in violation of Title VII; (2) defendants retaliated against her for speaking out about her alleged sexual harassment, a matter of public concern, in violation of the First Amendment to the United States Constitution, as enforced by 42 U.S.C. § 1983; (3) defendants subjected her to hostile work environment harassment, in violation of Title VII; and (4) defendants subjected her to hostile work environment harassment, constituting a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, also enforced through § 1983.

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6. Read Receipt

Finally, defendants move to exclude a read receipt, purportedly automatically generated by defendant Grimes' email account when he opened an email from plaintiff. Defendants argue that the Read Receipt is unauthenticated hearsay. Defendants' argument fails.

The Read Receipt is not hearsay. As noted, hearsay is a declarant's out of court statement offered to prove the truth of the matter asserted therein. Fed. R. Evid. 801(c). As an initial matter, it is questionable whether the Read Receipt is a "statement" at all. Federal Rule of Evidence 801(a) defines "statement," and specifically notes that a "statement" must be "intended . . . as an assertion." Id. Here, it is questionable that the Read Receipt was intended to be assertive. See United States v. Jackson, 588 F.2d 1046 1049-50 (5th Cir. 1979) (noting that conduct is not assertive unless it is intended as such).

In any event, even assuming arguendo the Read Receipt qualifies as a statement under Rule 801(a), the read receipt is still admissible against both defendants where it is excluded from Rule 801. See Fed. R. Evid. 801(d)(2)(A) & (D). In particular, the email was generated by defendant Grimes, thus Rule 801(d)(2)(A) allows its admission against him. Rule 801(d)(2)(D) [*31] , in addition, allows its admission against defendant Leland, because the statement came from defendant Grimes official email address, and defendant Grimes was required, as a function of his job, to investigate and respond to complaints of harassment. (Position Description, DE 32-2).

In addition, the Read Receipt may be properly authenticated under Federal Rule of Evidence 901(b)(1) & (4). Defendants argue proper authentication is impossible, because plaintiff failed to produce information about the email's origin, including the mechanism by which it was generated. In essence, defendants contend plaintiff should have submitted a technical affidavit explaining how "read receipt" emails are created, to ensure reliability.

This argument bears no weight on the ultimate admissibility of defendant Grimes' email. Courts occasionally require technical affidavits supporting the admissibility of email communications. Often, such affidavits are required where the email is being admitted as a business record, pursuant to Federal Rule of Evidence 803(6), or through some other hearsay exception. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 545-46 (D.Md. 2007). Under those circumstances reliability is paramount, particularly as the Rule of Evidence governing admissibility requires the court establish the same. Fed. R. Evid. 803(6)(E). Here, however, [*32]  the reliability of defendant Grimes' email is not at issue, because the email is being admitted as a statement of a party opponent, which does not require the court to ensure reliability. See Fed. R. Evid. 801(d)(2).

In addition, no technical affidavit is required to authenticate properly the Read Receipt. As noted, cases requiring technical affidavits often seek to establish reliability, see, e.g., Lorraine, 241 F.R.D. at 545-46, which is not in issue here. Thus, the Read Receipt may be authenticated by affidavit averring it is what it is claimed to be, or otherwise through the use of identifying characteristics. See Fed. R. Evid. 901(b)(1) & (4). Here, defendant Grimes acknowledges receipt of plaintiff January 2, 2011, email referenced in the read receipt.³ (Grimes Dep. 221:16-222:14). In addition, plaintiff avers that the email was sent to her email address from defendant Grimes email address (See DE 39-2, ¶10; see also Grimes Dep. 221:16-222:14 (acknowledging the read receipt came from defendant Grimes email)). Accordingly, the Read Receipt may properly be admitted.

3   It is of no matter that defendant Grimes contests the date on which he saw plaintiff's email. That discrepancy goes to the weight of the evidence. It is sufficient for the minimal authentication [*33]  threshold that defendant Grimes acknowledged he saw the email referenced in the document.