Commercial Litigation and Arbitration

Email Admissibility: Emails of Party Are 801(d)(2)(A) Admissions, and Incoming Emails Are Admissible for Effect on the Listener/Reader — Resume/CV Is Hearsay, But May Be Used to Refresh Recollection under 612

Hosse v. Sumner Cty. Bd. of Educ., LEXIS 44573, 2018 WL 1382539 (M.D. Tenn. Mar. 19, 2018) (Aspen, D.J.):

The jury trial is scheduled to begin in this case on March 27, 2018 at 9:00 a.m. A final pretrial conference is set for 9:00 a.m., with jury selection to follow immediately thereafter. Presently before us are objections to various proposed trial exhibits filed by Plaintiff Ron Hosse and Defendant Sumner County Board of Education, along with their respective responses. (Dkt. Nos. 134-35, 137-38.) Defendant objects to Plaintiff's Proposed Exhibit Nos. 1-4, 7-8, 12, 15-16, 18, 23, 25, and 35. (Dkt. No. 134.) Plaintiff objects to Defendant's Proposed Exhibit No. 13. (Dkt. No. 135.) In order to "narrow the issues remaining for trial and to minimize disruptions at trial," we rule on each objection in turn below. United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). As our pretrial rulings are subject to change as trial unfolds, these rulings constitute a preliminary determination in [*2]  preparation for trial. Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984); United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). However, this ruling does not mean that these rulings may be reargued at trial absent compelling new facts or issues not previously presented by the parties and addressed in this opinion.



D. Plaintiff's Exhibit No. 8

Defendant also argues Plaintiff's Proposed Exhibit No. 8, a copy of Plaintiff's resume, is inadmissible hearsay. Defendant contends Plaintiff can testify at trial as to his experience and training and should not be allowed to introduce a hearsay document that he created. Plaintiff argues in response that the resume falls under the recorded recollection exception to the rule against hearsay. Plaintiff argues his resume details his "extensive employment and educational history, occupational responsibilities, and dates of each respectively," which Plaintiff [*6]  "may not be able to recall . . . sufficient enough to testify and be cross-examined without extensive research." (Pl.'s Resp. at 2.) Plaintiff asserts the resume was made when the information was fresh in his mind and it is an accurate portrayal of his belief and knowledge. (Id.)

Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay is inadmissible unless an enumerated exception to the rule applies. Rule 803(5) provides an exception to the rule against hearsay for a record that "(A) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory, and (C) accurately reflects the witness's knowledge." Fed. R. Evid. 803(5). Even if admitted under Rule 803(5), the record may only be read into evidence and not received into evidence unless offered by an adverse party. Id.

Plaintiff has not shown that the resume was made or adopted when the matters were fresh in his memory. Fed. R. Evid. 803(5)(B). Although Plaintiff has not laid a foundation for the document, it appears to have been prepared in 2011, and describes [*7]  his experience dating back to at least 1972. While the resume may have been prepared somewhat closer in time to the several decades of experience it records, it appears no more reliable or "fresh" in Plaintiff's memory than Plaintiff's testimony at trial would be. See United States v. Smith, 197 F.3d 225, 231 (6th Cir. 1999) (explaining that while "contemporaneousness is not required in determining whether an event was sufficiently fresh" to satisfy the rule, the court has significant discretion in determining admissibility "as the circumstances of the particular case might indicate"); see also Jackson v. Wells Fargo Bank, N.A., 693 F. App'x 634, 635 (9th Cir. 2017) (finding the recorded recollection hearsay exception "is not often invoked where . . . the witness is a party to the action, if only because parties are peculiarly unlikely to lack recollection of the underlying events"). Moreover, courts have regularly excluded resumes or curriculum vitae as inadmissible hearsay. See, e,g., Sheffield v. State Farm Fire & Cas. Co., No. 5:14 C 38, 2016 U.S. Dist. LEXIS 81985, 2016 WL 3548550, at *8 (S.D. Ga. June 23, 2016); Mahnke v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 125, 154 (D.D.C. 2011); Sutfin v. City of Bono, Ark., No. 3:07 C 124, 2009 U.S. Dist. LEXIS 62327, 2009 WL 1955438, at *1 (E.D. Ark. July 6, 2009); Alexie v. United States, No. 3:05 C 297, 2009 U.S. Dist. LEXIS 4103, 2009 WL 160354, at *1 (D. Alaska Jan. 21, 2009); c.f. McBride v. Kmart Corp., No. 14 C 41, 2015 WL 13545913, at *3 (D. Wyo. Jan. 14, 2015) (observing that although curricula vitae are routinely admitted into evidence, an objection that they constitute hearsay "is well-taken").

Plaintiff can testify to all of the relevant [*8]  experiences listed on his resume from personal knowledge. To the extent he cannot recall exact dates or details, he may use the resume to refresh his recollection under Rule 612. See Fed. R. Evid. 612; Rush v. Illinois Cent. R. Co., 399 F.3d 705, 716 (6th Cir. 2005) ("Rule 612 of the Federal Rules of Evidence authorizes a party to refresh a witness's memory with a writing so long as the 'adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.'" (quoting Fed. R. Evid. 612)). Accordingly, Defendant's objection is sustained.


I. Plaintiff's Exhibit No. 23

Plaintiff's Proposed Exhibit No. 23 is an email dated June 7, 2012 from Plaintiff to Brown, who replaced Judy Wheeler as Assistant Director of Schools for Instruction. Defendant argues the document is inadmissible hearsay as it is being offered to prove Plaintiff's fitness for his reassignment. Defendant also contends the document is irrelevant as it contains Plaintiff's "subjective views, complaints, and self-serving statements regarding his reassignment." (Dkt. No. 134 at 3.) Plaintiff responds that the document is relevant and does not constitute hearsay because it is not being offered for the truth of the matter asserted. (Pl.'s Resp. at 3-4.) Instead, Plaintiff maintains he is offering the document to demonstrate the effect on the reader, namely that "Defendant [*12]  had notice that Plaintiff was more suited for other available positions, rather than the position to which he was transferred." (Id.)

Evidence may be admissible for the limited non-hearsay purpose of showing the effect of a statement on the listener or reader. See Rhoades v. Standard Parking Corp., 559 F. App'x 500, 506 (6th Cir. 2014) ("A statement that is not offered to prove the truth of the matter asserted but offered to show its effect on the listener is not hearsay."); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378-79 (6th Cir. 2009) (same). However, Plaintiff's stated reason for offering the email into evidence rests on admitting his own opinion that he was well-suited for available positions other than the one to which he was transferred. The document is inadmissible for this purpose. See Fed. R. Evid. 801(c). Insofar as Plaintiff is offering the evidence to demonstrate that Brown received notice that Plaintiff believed he was qualified for other positions, the email may be admissible, subject to Rule 403. Rhoades, 559 F. App'x at 506; Biegas, 573 F.3d at 378-79. As we cannot make an admissibility determination based on the record before us, we accordingly defer ruling on Defendant's objection until trial.



A. Defendant's Exhibit No. 13

Plaintiff objects to Defendants' Proposed Exhibit No. 13 on hearsay and relevance grounds. The exhibit is comprised of an email chain between Plaintiff, Brown, Wheeler, and Andy Daniels in June 2011. Plaintiff argues it is irrelevant because the emails "contain material prior to Brown becoming Plaintiff's Supervisor." (Dkt. No. 135 at 1.) However, Defendant argues the emails are relevant because they were sent at the time Brown became Plaintiff's supervisor, Brown was copied on the email chain, and the emails concern Plaintiff's communications with Daniels, the Board of Education Chairman, regarding an upcoming Curriculum Guide Meeting led by Brown. (Def.'s Resp. (Dkt. No. 137) at 1-2.) Defendant contends that the parties' communications leading up to the meeting are relevant to Brown's decision to transfer Plaintiff, in part due to "Plaintiff's insubordination and work performance issues with respect to the Curriculum Guide Meeting." [*15]  (Id.) Accordingly, Plaintiff's relevance objection is overruled.

Plaintiff also argues the email chain constitutes hearsay. In response, Defendant argues Plaintiff's email statements are not hearsay because they are statements offered against an opposing party. See Fed. R. Evid. 801(d)(2)(A) (providing a statement that is "offered against an opposing party and . . . was made by the party in an individual or representative capacity" is not hearsay). Defendant also argues the remaining statements in the email chain are admissible for the non-hearsay purpose of explaining their effect on the listener. As set forth above, to the extent Defendant is offering the email chain to show the effect of Plaintiff's statements on the recipients of his email, it is admissible for that purpose. Rhoades, 559 F. App'x at 506; Biegas, 573 F.3d at 378-79. Because Defendant is not offering the emails for the truth of the matters asserted therein by Wheeler or Daniels, they are admissible. Accordingly, Plaintiff's objections are overruled.


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