Evidence at the electronic frontier: introducing e-mail at trial in commercial litigation.
Electronic mail or "e-mail" has become the very fabric of commercial litigation. Yet, despite the fact that a veritable cottage industry has sprung up to assist litigators in discovering such evidence, and an extensive body of commentary has developed concerning such discovery issues, relatively little attention has been given to admissibility of e-mail. Indeed, among reported decisions, relatively little guidance exists--particularly in the context of commercial litigation. Of course, relatively few cases proceed to trial and, in civil litigation, cases are increasingly resolved through pretrial dispositive rulings, which inevitably emphasize substantive law rather than evidentiary rules, or through alternative dispute resolution, which contributes nothing to reported jurisprudence.
In light of this limited guidance, this Article explores a range of evidentiary issues likely to affect e-mail with a particular focus on commercial litigation. Given the paucity of decisions on point, this Article draws from cases involving e-mail in other types of settings, as well as cases involving analogous types of evidence. This Article assumes the applicability of the Federal Rules of Evidence, while drawing freely from analogous state authority. Section I introduces the nature of e-mail and its use in the commercial world. Section II addresses authenticity. Section III focuses on the best evidence rule. Section IV navigates the hearsay rule and its many exceptions. Finally, Section V discusses the rules governing relevance and prejudice.
Although this Article is organized according to types of evidentiary rules, certain common themes transcend categorization by rule. Specifically, e-mail tends to present three types of evidentiary issues. The first type of issue concerns whether the computerized nature of such evidence makes fabrication or error more likely. This type of issue cuts across rules governing authenticity, best evidence, and, to a lesser extent, the business records exception to the hearsay rule. The second type of issue has to do with the effect of the threaded nature of e-mail communications by which a single document can contain messages that are responsive to one another and that have been forwarded to other parties, as well as related attachments. This quality of e-mail communications has particular salience for authenticity, the doctrine of completeness, adoptive admissions, and hearsay exceptions that turn on spontaneity. The third type of issue relates to the manner in which e-mail is used to communicate. This type of issue presents numerous questions including: whether e-mail messages are more or less spontaneous than other types of communications; whether e-mail messages are more or less focused than other communications; whether e-mail messages are more or less comprehensible than other forms of communications; whether e-mail messages--through distinctive compositional style, as well as other features unique to the medium--are more or less identifiable than other writings; and whether e-mail messages are more or less likely than other forms of communications to contain matters that are inappropriate. These issues of practice, style, and content cut across authenticity, the hearsay rule and its various exceptions, and the rules governing relevance and unfair prejudice. As this summary of issues suggests, the purposes and styles of e-mail communications are at least as broad as any other type of written communication, which makes categorical generalizations hazardous. However, the media-neutral approach of the Federal Rules of Evidence is well suited to this flexible and varying form of communication.
II. E-MAIL AND ITS COMMERCIAL USE
In order to understand how e-mail works, one must understand certain information about the Internet. The Internet was developed in 1969 by the Department of Defense's Advanced Research Project Agency ("ARPA") as a network linking computers in different locations across the country that were owned by the military, defense contractors, and university laboratories. (1) Information is exchanged between computers linked to the Internet through protocols known as "packet switching," which break down messages into smaller "packets" of data. These smaller packets are routed through computers that transmit information across the Internet until they reach their destination point, where the packets are reassembled. (2) The destination points of computers linked to the Internet are identified by an Internet protocol address assigned to each computer linked to the Internet. An Internet protocol address consists of a string of numbers separated by periods. Because these numbers are unwieldy, computers with Internet protocol addresses are assigned "domain names" that are easier to remember. A domain name consists of a character string (known as a second level domain) followed by a so-called top level domain such as ".com" or ".edu" that supposedly designates the general purpose of the computer as commercial, educational, or otherwise. Thus, a company will typically have an Internet protocol address consisting of its company name in the second level domain and the ".com" designation as the top level domain, as in "microsoft.com." (3) Just as each computer linked to the Internet has its own Internet protocol address, an individual's e-mail address also has a unique Internet protocol address. This address takes the form of a character string, followed by the symbol "@," followed by the domain name of the computer linked to the Internet, as in "email@example.com." (4)
E-mail is but one method of communicating over the Internet. (5) The first e-mail message was sent using the Defense Department's precursor to the Internet in 1971. (6) However, e-mail gained popularity with the rise of local area networks ("LANs"), or computers within an organization that were linked to a closed network. Nevertheless, as the Internet gained popularity, closed e-mail systems on LANs were replaced with software allowing the exchange of e-mail with all other computers linked to the Internet. (7)
The profound effects of the Internet, in general, on the commercial world are difficult to understate. Yet, a number of surveys have found that, of all the means of communication made possible by the Internet, e-mail has had the greatest impact on the workplace. (8) According to one recent survey, executives spend an average of two hours per day using e-mail, and the average employee spends between two and two and one-half hours per day using e-mail. (9) Similarly, a recent survey of lawyers at the nation's largest law firms found that lawyers receive an average of forty-eight e-mail messages per day. (10) The business world has been described as "addicted" to e-mail. (11) Similarly, e-mail has been described as the "default mode of communication in the workplace." (12) For example, large numbers of employees report using e-mail to ask the person sitting next to them a question. (13) Employees spend so much time reviewing and responding to e-mail that e-mail has been cited as taxing corporate productivity. (14) Many chief executive officers are so overloaded with e-mail messages that they use assistants to screen them. (15)
Many of these e-mail messages are inappropriate or drafted with far too little thought. As a medium allowing spontaneous and instantaneous communication without directly sensing the presence of one's interlocutor in the seeming privacy of one's own workstation, e-mail appears to encourage people to let their guard down and communicate things they would otherwise never communicate. (16) For example, in one recent survey of professionals, some twenty-nine percent of respondents reported that either they or someone they knew at their place of employment had been disciplined for sending e-mails that were deemed inappropriate. (17) Indeed, even when drafted with good intentions, e-mail messages often create the wrong impression and cause unintended offense, because the sender did not adequately consider how the message might be interpreted by the recipient. (18) Moreover, the casual communications that are recorded by e-mail messages are the type of communications that often went unrecorded prior to e-mail. (19)
Not only is e-mail generating new types of evidence, but this evidence has surprising longevity--particularly given commercial computer storage practices. In addition to the hard drive of the user who created an e-mail message, the message may be stored on the hard drive of the recipient or of anyone to whom the message was forwarded, as well as on network servers, archival tapes containing periodic back-ups of a company's computer data, and portable media used by employees to create copies of particular information. (20) Furthermore, even when a file is "deleted" from a particular storage medium, this action merely designates the disk space holding that file to be overwritten with new data, which may not occur for some time, depending upon how storage space is allocated for new data. (21) Indeed, even when archival tapes are reused, old files may still be recovered beyond the end of the space occupied by any subsequent back-ups. (22)
As a result of these factors, e-mail has become the staple of most litigators' discovery diet. Nevertheless, in reported decisions involving e-mail, commercial disputes arrived somewhat late on the scene. For instance, during the early to mid 1990s, substantive decisions involving e-mail occurred largely in the employment and criminal fields. (23) In the late 1990s, as the appearance of e-mail evidence in reported decisions increased rapidly, the employment and criminal fields continued to provide the context for many of the reported decisions involving e-mail, although commercial litigation appeared as one of the leading growth areas for such decisions. (24)
III. AUTHENTICATING E-MAIL EVIDENCE
As with any item of evidence, the first step to introducing e-mail is authentication. In order to authenticate an e-mail message, Rule 901 requires the proponent to introduce "evidence sufficient to support a finding that the [e-mail message] is what its proponent claims." (25) Whether a document is what it purports to be is a matter of conditional relevance--i.e., the document is relevant only if the document is what it purports to be. (26) Such instances where an item's relevance depends upon establishing a condition are governed by Rule 104(b), pursuant to which the proponent of the item need only introduce "evidence sufficient to support a finding of the fulfillment of the condition." (27) To satisfy this standard, the proponent need only make a minimal showing. (28) As the Advisory Committee's note makes clear, whether the evidence demonstrates that the condition at issue is actually satisfied--i.e., whether the evidence that a document is what it purports to be proves that fact--is for jury to determine. It is only where there is no evidence from which "the jury could reasonably conclude that the fulfillment of the condition is ... established" that "the judge withdraws the matter from their consideration." (29) Flaws in the proof of a document's authenticity go to the weight that the jury gives that document in assessing the evidence rather than to the document's admissibility. (30)
Rule 901(b) provides several non-exclusive examples of permissible methods for authenticating evidence. Some of these examples are directly applicable to e-mail messages. Because the examples offered are "[b]y way of illustration only," however, "and not by way of limitation," those methods that do not literally apply to e-mail messages may, nonetheless, be used by analogy in support of similar methods that would apply to e-mail messages. (31) This Article focuses on authentication through testimony of a witness with personal knowledge, authentication through circumstantial evidence, whether e-mail warrants more rigorous or otherwise different procedures for authentication, and whether e-mail qualifies for so-called "self-authenticating" treatment.
A. Personal Knowledge
The simplest way to authenticate any item of evidence is through testimony by a knowledgeable witness "that a matter is what it is claimed to be." (32) Where a document embodies a communication, if a participant in, or recipient of, that communication was able to perceive who communicated what, then that person can authenticate the communication. (33) Where a written communication such as an e-mail message is transmitted, only the author of the e-mail message or anyone who saw the author compose and transmit the message will truly "know" the message's authorship, and be able to authenticate it. (34) Thus, in at least one case, a proponent was unable to authenticate e-mail messages where the only witness offered for authentication was an employee-witness of a company at which one of the parties to the e-mail transmissions was employed; significantly, the employee-witness was neither the sender nor recipient of the messages and offered no other details to show that the messages were actually sent or received by the parties involved. (35) Accordingly, where the author is unavailable to testify or where the witness authored only some of the messages contained in a chain of e-mail messages, questions regarding the knowledge requirement may arise. In these instances, however, authentication will be facilitated by the liberal approach taken by courts to the "knowledge" requirement (36) and by the circumstantial methods of authentication available through Rule 901(b) and otherwise. These circumstantial methods of authentication will be particularly important for commercial litigation, in which worker mobility and the cross-jurisdictional nature of many disputes combine to place numerous witnesses outside the jurisdictional reach of the applicable court.
B. Circumstantial Evidence
Where the author of a message is not available to testify or where the purported author disclaims authorship of the message, Rule 901(b)(4) allows the proponent of an item of evidence to authenticate that item based on its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with other circumstances." (37) For example, if the contents of a document "disclos[e] knowledge of facts known peculiarly to" one person, those contents may establish that this person authored the document. (38) Another established mechanism for authenticating letters from their contents may be useful in the e-mail context--namely, that "a letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one." (39) Language patterns used by an individual may also be helpful in establishing that a message with such language patterns was composed by that individual. (40) For instance, an e-mail message may reflect an individual's distinctive word choice or sentence structure. (41) Other factors that courts frequently consider in authenticating writings and other items will similarly apply to e-mail messages. These factors include where a document was located (including whether a party produced the document in discovery), whether a witness has knowledge that can connect the document to a particular person, whether the document was in existence at the time of circumstances necessary for a particular person to have created or received that item, whether the person who purportedly created the document had a motive for doing so that is consistent with the nature of the document, whether a person's or business's habit, routine, practice, or modus operandi is consistent with the document, whether the item reflects a date, return address, signature stamp, other marking, or letterhead that helps to identify the item's origin, and whether the contents of a writing reflect linguistic, grammatical, and stylistic traits consistent with a particular person's writing style. (42)
The features listed in Rule 901(b)(4) can be useful in authenticating a chain of communications transmitted back and forth--particularly, where one participant in the chain or series of communications can testify as to his or her role in the communications and has knowledge of those communications that he or she authored. Particularly instructive on this point is the Third Circuit's decision in United States v. Reilly, (43) which involved a series of radiotelegrams. In Reilly, the defendant challenged his conviction for offenses relating to shipping incinerator ash outside of the United States to dump it in the ocean and based this challenge on the trial court's admission into evidence of some thirty-five radiotelegrams that were transmitted from or received by a ship chartered by the company of which the defendant was vice president. (44) The Third Circuit held that the radiotelegrams were properly authenticated based on a combination of testimony regarding the transmission from, or reception at, the ship of these radiotelegrams, together with certain of their features:
* The ship's radio operator testified that he transmitted or transcribed each of the radiotelegrams sent from or received by the ship and that he recorded his initials on each; each copy offered into evidence contained these initials;
* The ship's captain also testified that he sent or received each of these radiotelegrams, that the defendant was the only person that the captain knew in the location from which most of the telegrams sent to the ship were received, and that the captain took his directions from the defendant;
* The defendant admitted that he was in contact with the ship's captain by phone and by cable on behalf of the two companies whose names or code names appeared in the radiotelegrams;
* The captain produced the radiotelegrams from the ship despite instructions from his company to destroy such documents;
* In addition to the facts that the bulk of the radiotelegrams were sent to or received from a location where the defendant was and were signed by names associated with companies for whom the defendant worked, three were sent to the defendant's telex number and one sent to the ship instructed the captain to call the defendant's home telephone number;
* The ship's logs of outgoing radiotelegrams and phone calls confirmed that numerous radiotelegrams and phone calls were transmitted from the ship to the defendant's office and home;
* The contents of many of the radiotelegrams reflected a progressive course of communication, with some messages indicating that they were in reply to others and some picking up the threads of communications in earlier messages. (45)
These circumstantial techniques for authentication are particularly useful in commercial settings, which tend to involve chains of communications back and forth between parties with established practices for communicating with one another at specific locations regarding specific subjects.
Many of these authentication techniques can be applied to e-mail messages. A good of example of how e-mail messages can be authenticated in accordance with Rule 901(b)(4) can be seen in United States v. Siddiqui. (46) In Siddiqui, the defendant was convicted of fraud, making false statements, and obstructing a federal investigation in connection with an award he had sought from the National Science Foundation ("NSF"). (47) At issue was whether the defendant had falsified documents, in the names of two other individuals, nominating and recommending the defendant for the award and whether the defendant had urged these two individuals to support the falsified documents. (48) In appealing the conviction, the defendant challenged the district court's decision to admit into evidence a number of e-mail communications between the defendant and these two individuals. In holding that the appearance, contents, substance, internal patterns, and other circumstances of these e-mail messages authenticated them, the Eleventh Circuit pointed to the following facts: (i) the e-mail messages reflected an e-mail address that included a variant of the defendant's name and a uniform resource locator for the defendant's employer; (ii) the e-mail address in these messages was consistent with one in another e-mail message that was introduced into evidence by the defendant as an e-mail message from the defendant to one of the two other individuals; (iii) the contents of the messages indicated that the author knew the details of the defendant's conduct in connection with the NSF award; (iv) one of the e-mail messages referred to a visit the defendant had made to a particular event attended by the defendant and by the recipient of the message; (v) the e-mail messages referred to the author by a nickname recognized by the recipients; and (vi) the e-mail messages occurred during the same time period in which the recipients spoke to the defendant by telephone and had conversations consistent in content with the e-mail messages. (49)
Another good example of how circumstantial evidence can be used to authenticate e-mail can be seen in United States v. Simpson, (50) a case involving evidence much like e-mail--namely, a printout of a session from an online chat room. In Simpson, the government was able to authenticate such a printout as constituting a chat room session between a detective and the defendant. Although the individual communicating with the detective used a pseudonym, this individual provided his first initial and last name, which were the same as the defendant's, as well as an e-mail address belonging to the defendant. Furthermore, pages found near a computer in the defendant's home contained the name, street address, e-mail address, and telephone number that the detective had provided the individual in the chat room session. Taken together, these circumstances were sufficient to authenticate the communication as one that occurred in a chat room session between the defendant and the detective. (51)
The authenticating circumstances cited by the courts in Reilly, Siddiqui, and Simpson are typical of identifying features of most e-mail messages in commercial litigation. Often, such messages originate from an e-mail address containing a domain name that is readily associated with a business. Indeed, the other component of the Internet address can often be readily associated with a particular employee of that business. When e-mail messages are sent from accounts maintained by commercial providers of e-mail services, one or more witnesses will frequently have a history of communicating with the purported author at that e-mail address, and other e-mail messages whose authenticity is not in question will often reflect communication with the purported author at that e-mail address. Furthermore, the contents of the e-mail message in question often will refer to matters that have been the subject of ongoing communication between the purported author and others, will refer to matters known peculiarly to the purported author or that relate to other documents associated with the purported author, or will reflect stylistic patterns of communication consistent with those of the purported author.
C. Different or More Rigorous Procedures for Authentication
Notwithstanding the liberal approach generally taken with respect to the knowledge requirement, one question presented by e-mail is whether the computer-generated nature of this evidence sufficiently diminishes its trustworthiness to require some heightened showing of knowledge. Evidence generated by computer may present at least three types of problems that potentially warrant such a showing. First, if the evidence is obtained from an original source of computer storage media by a technician who regularly obtains such evidence and if the technician does not observe any distinctive characteristics of the evidence that is obtained, then, without additional evidence accounting for the whereabouts of the storage medium obtained by the technician between the time it was obtained and trial, the technician is not in a position to vouch for the storage medium offered at trial as the same item that was obtained by the technician at the relevant time. Second, any evidence in computer storage media is susceptible to tampering in its generation, storage, and/or retrieval. (52) Third, it has been argued that e-mail, as the product of a computer, is likely to have an aura of reliability that is particularly unwarranted in light of the arguably greater ease with which such evidence can be fabricated. (53)
Where an item offered into evidence presents concerns regarding either its capacity for identification by virtue of distinctiveness or its susceptibility to tampering, courts have sometimes required the proponent of the item to establish a so-called "chain of custody," which is testimony or other evidence accounting for the whereabouts and condition of the item at each stage from the time the item was first identified to its presence at trial. (54) A typical example of evidence that is insufficiently distinctive to be admitted without a chain of custody establishing that the item offered at trial is the same item identified at the relevant time period would be a handgun. (55) A typical example of evidence whose susceptibility to tampering has prompted some courts to require a chain of custody is a tape recording. (56) Although a chain of custody theoretically should account for the item of evidence from the relevant time period to trial, the liberal approach to authentication leads most courts to conclude that defects in a chain of custody affect the weight of the evidence rather than its admissibility. (57) The proponent need only establish that it is reasonably likely that the item was not tampered with or substituted for a similar item. (58) Furthermore, even in such prototypical examples as guns and tape recordings, where a chain of custody is typically required, the requirement is not absolute. If there is other circumstantial evidence sufficient to establish that the item in question was not tampered with or substituted, then the proponent need not establish a chain of custody. (59)
With respect to computerized evidence, chain of custody procedures have been highly recommended when an original source of computer storage is copied and preserved for such purposes as searching for deleted documents whose storage space has not yet been overwritten with new data, searching for data indicating when a document was created or altered, or searching for any other evidence of fabricated data. (60) These scenarios, however, present a number of special circumstances that may warrant a chain of custody. For instance, the very purpose of obtaining such evidence is typically to impeach a printout as a fabrication. Yet, just as storage media may reveal that data previously generated by a computer was fabricated, so, too, is the copied storage media capable of being altered. In addition, the types of evidence and procedures used to accomplish this impeachment are relatively novel and unfamiliar to most. Indeed, in some cases, permission to undertake such procedures has been denied by the courts in light of, among other things, the inability of the proponent to guarantee either that the procedure would yield the type of information sought or that the procedure would not damage the computer system from which the evidence was sought. (61) More tellingly, there are reported decisions in which the procedures used for copying an original source of computer storage were so flawed that these procedures themselves caused the deletion of some of the data sought to be preserved--thereby seriously undercutting the impeachment value of that data. (62) Finally, as previously discussed, this type of procedure is typically performed by a technician who is regularly hired for this task. Like the proverbial police officer who obtains a gun at one of numerous crime scenes visited in any given time span, unless the technician has an opportunity to observe distinctive aspects of the storage media being copied at the time of its copying (which, it should be noted, may be the case), such a technician will not have personal knowledge about the computer storage media. In such circumstances, without sealing and marking the copied media according to an established procedure, the technician will not be able to vouch for the fact that the storage media offered at trial has not been altered or is even the same storage media originally copied.
By contrast, where the proponent of computerized evidence has a witness who can identify the evidence from personal knowledge and there is no credible reason for believing that the evidence has been altered, a chain of custody may be unnecessary. For example, in United States v. Whitaker, (63) a criminal defendant challenged his conviction for conspiracy to distribute marijuana and based the challenge on the admission of certain computer records from a co-conspirator. The defendant argued that the government failed to authenticate these records properly; specifically, the defendant pointed to the government's failure to establish a chain of custody. The Seventh Circuit rejected this challenge. First, the court held that the records were sufficiently authenticated by testimony from the agent who retrieved the records regarding his personal knowledge of the records, his presence during the retrieval, the procedure used for retrieval, and his participation in obtaining printouts. (64) Second, the court held that it was unnecessary to establish a chain of custody to rebut speculative hypotheses that the records were tampered with while in government custody. Specifically, the defendant challenged the fact that the government obtained assistance from the co-conspirator and allowed the co-conspirator to access the records while in government custody. The defendant argued that the co-conspirator could have altered the computer records to incriminate the defendant. The court held that "without some evidence to support such a scenario" it would not overturn the trial court's refusal to require a chain of custody that would rebut such "wild-eyed speculation." (65)
Where, however, there is reason to believe that an item of computer-generated evidence has been fabricated--such as where the proponent is a skilled computer user and there is evidence to suggest fabrication by the proponent--then a court may require either a chain of custody or some source of knowledge that is independent from the proponent to vouch for the item's authenticity. A good example is presented by the case of United States v. Jackson. (66) In that case, the defendant was convicted on a number of charges relating to a scheme by which she falsified records relating to items shipped or purportedly shipped through United Parcel Service ("UPS"), submitted claims for such items at inflated values, claimed that UPS's denial of her claims was based on racism, orchestrated a campaign of racist hate mail sent to prominent African-Americans via UPS, and created false evidence--including false e-mails--in an attempt to establish an alibi. (67) One element of the scheme involved two white supremacy organizations known as the Euro-American Student Union and the Storm Front, whose addresses were listed as the return addresses for the racist letters in question. Evidence seized from the defendant's computer revealed that, at about the time that these letters were sent, the defendant had visited the web sites of these organizations. (68) At trial, the defendant sought to introduce web site postings from these two white supremacy organizations, and the evidence was excluded. In these postings, the groups gloated about the case and took credit for the racist UPS mailings. The government argued that the web site postings were concocted by the defendant. Although the Seventh Circuit held that this argument did not affect the relevance of the postings, the court also held that the trial judge was justified in excluding the postings because they were not sufficiently authenticated. (69) The court explained that the defendant "needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailings actually were posted by the groups, as opposed to being slipped onto the groups' web sites by [the defendant] herself, who was a skilled computer user." (70) The court held that the defendant "was unable to show that these postings were authentic." (71)
Although there are certain cases where computerized evidence such as e-mail may trigger a heightened knowledge threshold for authentication, there are also certain cases where such evidence will present a lower knowledge threshold. In particular, where business or governmental records are created pursuant to procedures such that those records have a distinctive form that can be identified by an individual who knows the procedure, that individual can authenticate the records even if he or she does not have personal knowledge about those particular records. (72) For example, an individual designated as keeper of the records for an entire area code covered by a particular telephone carrier was able to authenticate records of a particular customer's telephone calls based on testimony about how the carrier makes and stores such records, that the records were retrieved from a storage center in a different location than where the witness worked, how copies were provided to the witness when the storage center produced the records to the government, and how the particular document at issue reflected telephone calls from the residence of the individual in question and did not appear to have been altered or tampered with. (73) Thus, where a company uses e-mail to create certain types of business records, if an employee recognizes the e-mail form and is familiar with the procedures used for recording information in that form, that employee should be able to authenticate the records even if he or she has never seen the particular records at issue.
As the foregoing discussion suggests, courts are unlikely to deviate from the basic approach of the Federal Rules of Evidence towards authenticating e-mails--even when such messages are retrieved from computer storage rather than produced in preexisting hard copy format--merely because of the different medium used to generate such evidence. Indeed, as an empirical matter, in the relatively few reported decisions to date, it appears that courts have found the framework of these rules sufficient to address questions presented by e-mail. (74) Moreover, given the widespread use of e-mail in commercial settings, including as a replacement for other forms of written communication, adopting a heightened standard would fundamentally alter litigants' ability to present the fact finder with documentary proof and would shield much evidence from the fact finder. It may well be that it is easier to send an e-mail from someone else's account or forge the return address than it is to forge a written signature. (75) Nevertheless, where the authenticity of an e-mail is challenged, the jury should be capable of assessing the challenge. For instance, where an e-mail is truly forged it is likely to be rare that the only evidence of forgery consists of the testimony of a witness disclaiming the attributed authorship. The contents of the message can be assessed in light of facts known to the witness and events in which the witness participated. The compositional style can be compared to the witness's compositional style. Furthermore, there may be electronic or other evidence either linking someone else to the composition of the message or placing the witness in a location or position from which authorship of the message would have been improbable at the time the message was sent. (76) Although there may be particular cases where a heightened showing such as a chain of custody may be required, any such requirement would stem from the limitations on a particular witness's knowledge or unusual circumstances casting doubt on the authenticity of particular e-mails, rather than from any concern about e-mail as a genre of evidence. (77)
One other circumstance present in most e-mail messages in commercial litigation deserves separate treatment, as it can potentially impact authentication in a way that is much greater than and very different from other types of circumstantial evidence. This piece of circumstantial evidence is the e-mail's return address, which is potentially eligible for so-called "self-authentication."
Some documents are self-authenticating, which means that they can be authenticated without "[e]xtrinsic evidence of authenticity." (78) One category of self-authenticating documents encompasses "[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin." (79) It has been argued that e-mail messages sent from a return address reflecting a trademark or trade name should be eligible for such treatment. (80) Indeed, much of the rationale underlying self-authentication for trade inscriptions similarly applies when a trademark or trade name is reflected in an e-mail address. Specifically, the rule is justified by the serious penalties that the trademark laws apply to one who uses the mark of another without authorization. (81) These trademark laws have been applied to allow redress against a party who falsely uses another's trademark in a return e-mail address without authorization. (82) Indeed, there is separate trademark legislation specifically providing redress against a party who uses a domain name that is confusingly similar to, or dilutes the value of, the trademark of another. (83) Moreover, additional penalties may apply to the use of falsified return e-mail addresses. For instance, using false return addresses in bulk e-mail may trigger liability for trespass to chattels. (84) Furthermore, some states have laws that specifically prohibit such falsified return e-mail addresses. (85)
It has been argued, however, that extending this self-authentication rule to return e-mail addresses reflecting corporate names results in self-authentication of the entire e-mail message sent under this address. (86) In most cases, trade inscriptions authenticate whatever is inscribed, as well as the inscription itself. (87) Indeed, in at least one reported decision, a federal district court made a preliminary determination that certain e-mails and facsimiles were self-authenticating. (88) In denying a motion in limine to preclude such evidence, however, that court also relied on the fact that the documents were produced from the parties' own files in discovery and, in addition, reserved final ruling on admission for trial. (89) Yet, in another case, a screen name used in an instant messaging service was held insufficient to authenticate the messages sent under that name as originating from the declarant, even when coupled with such other circumstances as the witness's memory of seeing the alleged declarant's first or full name associated with the screen name in the messaging service's user profile, as well as references in the contents of the message to events known by both the witness and the alleged declarant. (90) In that case, however, the printout contained the message alone, without the type of identifying information typically printed out with e-mail messages, and the events referenced in the message were known to others who corresponded with the witness using the instant messaging service and who knew of this screen name not just to the authenticating witness. These other persons could have fabricated the message. Thus, given the lack of direct evidence linking the alleged declarant to the screen name and given the large amount of trial time that would have been consumed in establishing how this Internet service operated, all to authenticate a message pertaining to a collateral matter, the message was held to be properly excluded. (91)
Where the e-mail address reflects the employee's name in combination with the employer's name (i.e., "firstname.lastname@example.org"), it might be argued that the e-mail address is actually a trade inscription of the employee. (92) Yet, a similar argument could be made with respect to individualized letterhead. The legal basis for protecting an individual's name from false attribution of authorship is less certain than is the case with trademark protection and may depend on whether the misuse involves an appropriation of the commercial value of the name or on whether the individual is cast in a "false light" and on whether such actions are recognized in a particular jurisdiction. (93) Such actions may violate a company's internal policies, but it is not clear that the same indicia of trustworthiness attaching to trade inscriptions also attach to individual worker names in e-mail addresses or that such indicia of trustworthiness attach to the same degree. Accordingly, it is not clear that a return e-mail address identifying a worker and company name would do anything more than identify the e-mail message as originating from the company's computer system. (94)
To illustrate the potential implications of the argument that an e-mail address is sufficient to authenticate the entire e-mail message, if a trade inscription automatically authenticated a document bearing the trade inscription, then all documents appearing on corporate letterhead would be self-authenticating. It is far from clear, however, that courts will embrace this full potential scope of self-authentication. For instance, one federal appellate court has held that an automobile owner's manual was not self-authenticated merely because it bore the automobile manufacturer's inscription on the cover. (95) In addition, one leading commentator has argued that, where a document bears a trade inscription, the inscription identifies the document's source but not its author. (96) Furthermore, at common law, it was long the rule that the mere fact that a document purports to have been authored by a particular individual is not, in and of itself, sufficient evidence to go to the jury on authenticity. (97)
IV. THE BEST EVIDENCE RULE
The so-called "best evidence rule" is embodied in Rule 1002, which requires "the original writing, recording, or photograph" where proving the contents of such an item, except as expressly provided by the rules of evidence or otherwise by law. (98) There can be no doubt that the rule extends to electronic mail, as the terms "writings" and "recordings" are defined jointly to include "letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." (99) Furthermore, the definition of the term "original" provides that, "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" (100) Similarly, the term "duplicate" is defined to include any "counterpart produced," among other things, "by mechanical or electronic re-recording." (101)
The exception permitting the use of duplicates, however, is sufficiently broad as to swallow the rule almost, but not quite, entirely. Specifically, Rule 1003 permits the use of a duplicate unless there is either "a genuine question ... as to the authenticity of the original" or there are "circumstances" that would render it "unfair" to allow the duplicate to be used instead of the original. (102) Accordingly, Rule 1003 obviates the need for most disputes over what constitutes an "original" and what constitutes a "duplicate." (103)
Because Rule 1003 does not permit the use of a duplicate where there is a genuine issue regarding the authenticity of the original, and because printouts will only be deemed "originals" when shown to reflect the original data accurately, one problem potentially presented by e-mail messages is whether it can be determined that a particular message was truly sent at the time indicated on the message or was fabricated for purposes of the litigation. For example, one court held that a printout of a letter from a word processing system was inadmissible where there was no signature, letterhead, or other evidence to indicate that the letter was actually sent at the time reflected in the letter's date. (104) In that case, however, the proponent offered numerous such letters that were retrieved from computer storage when one would have expected to find copies on letterhead with signatures, some of which contained such signs of unreliability as varying copies of the same document. (105) Such difficulties can usually be overcome by circumstantial evidence showing that an e-mail message was actually sent at a particular time, such as production of copies of the message by multiple parties to the litigation and the existence of other communications or actions that are consistent with the message. (106) As discussed in connection with authenticity, in the commercial context, e-mail messages are often sent against a backdrop of other communications and events in which the e-mail messages can readily be situated. Furthermore, given the definition of "original" to include printouts and other computer outputs, courts are unlikely to indulge unsupported speculation that e-mail messages were fabricated. (107)
Another type of controversy that occasionally arises under the best evidence rule is where neither an original nor a duplicate is available and the proponent seeks to introduce other secondary evidence of the contents of the document. Under Rule 1004, "[t]he original is not required, and other evidence of the contents of a writing ... is admissible" where, among other circumstances, "[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." (108) Thus, courts have occasionally allowed a party to offer such secondary evidence of computerized documents as notes taken from a computerized record, partial photocopies of a computerized record, and a witness's memory of the computerized record. (109) Where, however, a party offered a witness's testimony about what the witness observed on a computer screen without first establishing that the original computer record was no longer available, it was held that the trial judge erred in admitting such testimony. (110)
Courts vary the degree of the search required based upon what is reasonable under the circumstances but typically require some showing that all accessible locations have been searched. (111) Given the technologies available to retrieve even deleted documents, combined with commercial storage practices that may make copies available from such disparate locations as archive tapes, portable storage media, Internet service providers, and off-site computer hard drives, courts may require a more detailed showing that an original has been lost or destroyed before allowing a party to introduce secondary evidence of e-mail messages. (112) In light of the extraordinary costs and burdens that can be presented by some forms of retrieval--such as retrieving e-mail messages stored using legacy systems that are no longer in use--it remains to be seen whether courts will accept such obstacles to retrieval as evidence that the original has been lost or destroyed. (113)
Finally, the applicability of the best evidence rule to electronic mail may be affected by recent state and federal legislation pertaining to electronic records. Certain states impose restrictions on the use of electronic reproductions, such as by requiring that the reproduction be made by a process that does not permit additions, deletions, or alterations to the contents of the record. (114) The Uniform Electronic Transactions Act ("UETA") provides that "evidence of a record or signature may not be excluded solely because it is in electronic form." (115) The commentary to UETA, however, makes clear that the best evidence rule remains applicable to such evidence. (116) By contrast, at the federal level, the Electronic Signatures in Global and National Commerce Act ("E-Sign") expressly preempts laws imposing "consequences" on the failure to provide originals of contracts and other records that are subject to E-Sign where the contract or other record is maintained in an electronic form that accurately reflects the document's information and is capable of being retained and accurately reproduced for interested parties. (117) E-Sign, however, does not preempt UETA or state laws providing alternative procedures or requirements for electronic records or signatures to the extent that (i) such laws are deemed to be consistent with the core provisions of E-Sign, (ii) such laws do not favor one technology over another, and (iii) if enacted after E-Sign, such laws make specific reference to E-Sign. (118) Subject to limited exceptions, E-Sign applies broadly to any "contract or other record relating to a transaction in or affecting interstate or foreign commerce...." (119) Accordingly, in many transactions, E-Sign will render the best evidence rule inapplicable. Furthermore, state laws requiring the use of reproduction technology that does not permit additions, deletions, or alterations may be seen as favoring certain technologies over others. Accordingly, in transactions subject to E-Sign, such state requirements may be preempted by E-Sign.
V. E-MAIL AND THE HEARSAY EXCLUSION
One frequently encountered obstacle to admitting e-mail messages is the hearsay rule. Rule 802 of the Federal Rules of Evidence excludes all hearsay that is not admissible pursuant to an exception provided by the rules or by statute. (120) Subject to a number of exceptions that will be discussed below, hearsay is generally defined as a "statement" that was made by the declarant outside the courtroom. (121) Thus, the definition of hearsay employs the term "statement" to categorize the types of evidence that may fall within the exclusion. (122) In turn, the term "statement" is defined as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended ... as an assertion." (123)
E-mail messages fall within the category of "statements" capable of triggering the hearsay exclusion because they consist of "written assertions." As discussed above, elsewhere in the Federal Rules of Evidence (for purposes of the best evidence rule), the term "writings" is defined broadly to include "letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." (124) When recorded in paper version, e-mail constitutes letters, words, or numbers set down by printing. When stored in computerized memory, e-mail constitutes letters, words, or numbers set down by magnetic impulse, mechanical, or electronic recording.
Accordingly, to offer e-mail messages into evidence it will be necessary to review the many exceptions to the definition of "hearsay" as well as the many exceptions to the hearsay exclusion. Most of these exceptions typically arise in the context of statements made by one's own client or by a third party. Although the full range of these exceptions is potentially applicable to statements by an opposing party or its employees, such statements typically have a more straightforward path to admission into evidence through the rules governing "admissions." Therefore, this section focuses first on a broad range of exceptions potentially applicable to e-mail messages authored by one's own client or a third party, and then examines statements by a party opponent under the rules governing admissions.
A. Statements by One's Own Client or Third Parties
1. Non-Hearsay Statements
An out-of-court statement will meet the definition of hearsay only where it is "offered in evidence to prove the truth of the matter asserted." (125) The reason for this limitation lies in the theoretical underpinnings of the hearsay exclusion. Out-of-court statements are deemed less reliable because declarants of out-of-court statements are not sworn under oath, are not subject to scrutiny of their demeanor by the trier of fact, and are not subject to cross-examination to expose inconsistencies or imperfections in such statements. (126) Where an out-of-court statement is not offered for its truth content, however, no concern arises that the accuracy of the statement should be subject to the scrutiny afforded by the trial process. Because the declarant's credibility is not at issue, there is no need for the trier of fact to assess the declarant's "perception, narration, and memory." (127) Without setting forth an exhaustive catalog of statements that are not offered for any truth content, certain forms of such statements are likely to recur in e-mail messages.
a. Implicit Assertions
Certain actions taken outside the courtroom do not explicitly assert any fact that is verifiable but may, nonetheless, implicitly tend to show the existence of a fact. In other words, a person may not take a certain action unless he or she believes certain facts to be true. The action may not be intended to convey an assertion but one can infer from the action that the actor believes certain facts to be true. (128) The significance of this distinction lies in the hearsay rule's definition of "statement," which is limited to those assertions or nonverbal conduct where the assertion or conduct "is intended by the [declarant] as an assertion." (129) As the Advisory Committee underscored, "[t]he key to the definition is that nothing is an assertion unless intended to be one." (130) The Advisory Committee exempted from the hearsay rule conduct that implies assertions because there is less danger that a person would take some action merely to prove a belief that tends to be implicit in taking actions of that type. (131)
A concrete example of how this exemption works makes clear how the exemption may apply to e-mail. Specifically, the Eighth Circuit has held that a letter could not be offered into evidence to assert the implied truth of its written contents but that the letter's envelope was admissible to prove that the addressee lived at the address reflected on that envelope, as indicated by the implicit belief of the person who sent the letter. The court reasoned: "There is some guarantee that an inference drawn from out-of-court behavior is trustworthy, because people base their actions on the correctness of their belief." (132) Thus, by analogy, a person's act of sending an e-mail message to a recipient at a particular e-mail address may be admissible to show that the sender believed the recipient to be using that e-mail address.
Similarly, correspondence that implicitly links an addressee to certain matters in a nonassertive manner has been held admissible. For example, where four defendants were convicted of a conspiracy to import marijuana on a shipping vessel, the Fifth Circuit upheld the admissibility of a letter, discovered on the vessel in question, addressed to the four defendants and bidding them "farewell" on a journey. The letter was held admissible because it was offered "for the limited purpose of linking the [defendants] with the vessel and with one another" and, thus, merely as "circumstantial [evidence] that the [defendants] were associated with each other and the boat." (133) By analogy, an e-mail message addressed to multiple individuals concerning a particular subject might be admissible for the limited purpose of linking the addressees to the subject of the message.
Nevertheless, the mere fact that a communication has implicit meaning that differs from its explicit meaning will not necessarily make the communication admissible to prove the implicit message. This point is particularly apparent in cases where the implicit message differs only slightly from the explicit message, as where a proponent offers his or her own correspondence to prove that he or she would not have sent the correspondence without holding beliefs consistent with the correspondence. For example, the Second Circuit has upheld the exclusion of a letter from one alleged conspirator to another in which the author stated that he was resigning from a bank at which the two worked because the author disagreed with the policies of the addressee. In that case, the letter was written after the events at issue and, thus, was intended for the jury to infer that the defendant had the state of mind implied by the explicit assertions. (134) This line of reasoning suggests limits on a party's ability to introduce e-mail messages for their implicit meaning. In the examples previously offered as instances where e-mail messages may be admissible, an e-mail message likely would not be admissible to show the author's belief that the recipient used the e-mail address designated for the recipient if the author intended to convey that belief by sending the message. Similarly, an e-mail message likely would not be admissible to link multiple addressees to each other and to the subject of the e-mail message where the author of the message intended that such a link be drawn.
Often, it will be difficult to draw the line between implicit meaning that was not intended to be assertive and implicit meaning that was intended to be assertive. For example, the District of Columbia Circuit held that a television sales receipt addressed to the defendant and found in a bedroom was admissible to show that an item belonging to the defendant was located in that room but was inadmissible to show that the address on the receipt was the defendant's address. (135) Accordingly, the resolution of this issue will be highly fact-specific.
b. Legally Operative Facts
An out-of-court statement may have legal effect. Where a party seeks to use the statement for that legal effect, the statement is not offered for the truth of the matter asserted and is not hearsay. As explained by the Advisory Committee, "[i]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay." (136)
Perhaps the classic example of an out-of-court statement that is a legally operative fact is a contract. (137) Under recent federal and proposed uniform state legislation giving electronic signatures the same effect as other types of writings, it is likely that certain e-mail messages will form binding contracts. (138) Indeed, even under common law, it has been held that an e-mail message can constitute an acceptance of a contract. (139) Similarly, under legislation giving electronic signatures the same effect as other types of writings, certain e-mail messages may have the effect of satisfying legal requirements that consent be given in writing, as, for example, in the case of licensing certain privacy and publicity rights. (140)
Even where an e-mail message is not evidence of a legal relationship, the communication may, nonetheless, have other legal significance. For instance, communications that are alleged to have been made in violation of laws that prohibit or regulate such communications will be admissible where the alleged violation is at issue in the litigation. (141) One obvious example applicable to e-mail is where an e-mail message is sent in violation of laws governing the form and contents of solicitations by e-mail. (142)
An e-mail message may also constitute a legally operative fact under laws that are not specifically targeted at that medium of communication. An example can be seen in Mota v. University of Texas Houston Health Science Center. (143) In Mota, a professor sued the university at which he taught for sexual harassment and retaliation. In determining how the university's conduct would impact the plaintiff's future work prospects for the purpose of awarding front pay, the trial court considered, over the university's objection, an e-mail written by the university's president. The e-mail was written after the jury's verdict against the university but before the trial judge's award of front pay. The e-mail was sent to all employees of the university. In the message, the president expressed "disappointment over the jury's finding of retaliation" and stated that the plaintiff had not been fired but had failed to return to work after the expiration of his leave. (144) On appeal, the Fifth Circuit held that the e-mail message was properly admitted as a verbal act and was not offered for the truth of the matter asserted. (145)
c. Knowledge, Notice, and State of Mind
If an out-of-court statement is offered merely to show that a party was on notice of a fact in that statement in order to prove the party's knowledge of, or state of mind with respect to, that fact, then the statement is not offered for the truth of the matter asserted and is not hearsay. (146) To qualify for admission under this theory, the party whose state of mind is at issue must have known about the communication at issue at a time relevant to that party's actions. (147) However, where a party's state of mind is at issue, out-of-court statements made to that party giving that party sufficient knowledge or notice to establish that the party's subsequent acts were knowing or willful have been held admissible. (148) An example involving e-mail can be seen in Perfect 10, Inc. v. Cybernet Ventures, Inc., (149) a case in which the plaintiff claimed that the defendant engaged in contributory copyright infringement by knowingly providing material assistance to operators of web sites that contained infringing images. In order to prove that the defendant had the requisite degree of knowledge, the plaintiff relied upon approximately 2,000 e-mails sent by a third party to the defendant notifying the defendant of copyright infringement on its system. The court overruled the defendant's objection to this evidence and held that it was admissible for the limited purpose of showing notice of infringing or potentially infringing activity. (150)
One example of a statement offered to prove the declarant's state of mind rather than the truth of the matter asserted arises in trademark infringement actions where the plaintiff is attempting to demonstrate that consumers are likely to be confused between the defendant's mark and the plaintiff's mark. In such cases, the plaintiff will sometimes attempt to prove that the defendant's mark has already caused actual confusion among the public and will offer as evidence of such actual confusion statements in which the declarant misidentifies a product or service as originating from the wrong party or statements that are misdirected by the declarant to the wrong party. Most courts will find such statements admissible for the non-hearsay purpose of showing the declarant's confused state of mind. (151) This non-hearsay purpose is difficult to distinguish from the "then existing" state of mind exception to the hearsay rule, which is more frequently invoked in this context. The "then existing" state of mind exception to the hearsay rule will be discussed in detail below.
d. Motive, Intent, and Beliefs
Where a statement is offered merely to explain a party's motives, intent, or belief in carrying out a particular action, the statement is not offered for the truth of the matter asserted and is not hearsay. (152) Given the increasing use of e-mail for all types of business communications, and the unguarded and starkly candid nature of many e-mail messages, e-mail will likely be a fertile source of evidence as motive, intent, and belief.
Many litigators expect to find that e-mail messages produced by the opposing party contain "smoking gun" type of evidence regarding the opposing party's motives, intentions, or beliefs. However, this hearsay exception can also be a vehicle for introducing e-mail messages authored by one's own client or by a third party to demonstrate that the client possessed a proper motive, intention, or belief. Specifically, in Brill v. Lante Corp., (153) the plaintiff claimed that she was not promoted and was ultimately terminated because of her gender. The employer, however, responded that its actions were based on a belief by the plaintiff's supervisor that the plaintiff had alienated certain clients. As evidence, the employer offered an e-mail message from a client in which the client complained about the plaintiff's conduct. While the plaintiff disputed the accuracy of the e-mail message's depiction of her conduct, the message was not offered to prove the truth of the incidents described in the message. Rather, the e-mail message was admitted to show that her supervisor had an honest belief that the plaintiff had behaved in the manner described in the client's e-mail message. (154) Thus, in a variety of actions in which a business is attempting to demonstrate that it acted reasonably or without pretext, internal e-mail messages or e-mail messages received from others may be admissible to demonstrate a basis for an entity's claimed motive, intent, or belief.
In light of the careless and hasty manner in which e-mail messages are often drafted, many e-mail messages that shed light on the author's motive, intent, or belief will be ambiguous. One such e-mail message was at issue in Churn Ltd. v. Lisowski, (155) a trademark dispute. The plaintiff produced, broadcast, and distributed television and radio programming, including a program featured on VH-1 called "Fashion Television," which used the marks "FT FashionTelevision," "Fashion TV," and "FTV." The defendants produced a television channel featuring music and clips of fashion models under the name "f l'original" but also referred to as "f l'original Fashion TV," "FTV," "FTV The Original," "Fashion TV The Original," "Fashion TV," and "Fashion TV Paris." After the parties met at an industry event, they discussed the potential sale by the plaintiff of a particular program to be broadcast on the defendants' channel. Around this time, one of the individual defendants sent an e-mail message to a senior employee of the plaintiff. This message indicates one of the potentially infringing names used by the defendant with the following reference to the potential legal conflict:
Though my legal counsel advises me that this is quite alright, as we use the F.TV as a trademark, and Fashion Television as a descriptive work, I would like to make sure that we are not infringing on any of your intellectual properties. On the ohter [sic] hand, Fashion Television is more a descriptive matter, rather than an attempt to infringe on your rights. (156)
Each party sought to rely on this e-mail message in connection with the defendants' motion for summary judgment on the plaintiff's unfair competition claim. The plaintiff pointed to the e-mail as evidence of the defendants' intentional copying, an indicator of likely consumer confusion, which, in turn, is an essential element of the claim. By contrast, the defendants pointed to the e-mail as evidence of their good faith reliance on legal counsel in using the marks in question. Given the ambiguity of the e-mail message, the court found a disputed issue of fact for trial. (157)
e. Relationships, Links, and Connections
One non-truth purpose for offering out-of-court statements is to establish a relationship, link, or connection between the individuals discussed in those statements. (158) For example, receipts offered into evidence for the purpose of showing a link between various parties have been held to be admissible as not offered for the truth of the matter asserted. (159) When offered for this sort of purpose, the evidence is considered to be "circumstantial evidence" or a "mechanical trace" that connects people to each other or to events. (160) As long as the item submitted provides a basis for making the link without accepting the truth of any statement made, the evidence will not be hearsay. (161) The Advisory Committee has described such statements used for circumstantial proof as "verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted." (162) Thus far, at least one decision has held that e-mail messages between a criminal defendant and a third party unrelated to the subject matter of the prosecution were admissible to show the relationship between these two individuals and their custom of communicating via e-mail. (163)
f. Context and Completeness
Many out-of-court statements are admissible to provide context for other admissible evidence. In such circumstances, the statements are not hearsay because the purpose of providing context is deemed to be different than the purpose of establishing the truth of the matters asserted in such statements. For example, where a party's out-of-court statements in a conversation are admissible as an admission of a party opponent, the statements of the other participant in that conversation are admissible in order to render the party's admissions intelligible. (164)
In part, this doctrine is reflected in Rule 106, which provides: "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." (165) This rule is designed to prevent misleading impressions that may be created as a result of taking statements out of context. (166)
Rule 106 only partly codifies the law of admitting out-of-court statements for purposes of providing context or completeness because the rule requires that the opponent first introduce a document or part thereof before the proponent may introduce related documents or additional parts and because it only applies to writings and records. (167) Nevertheless, when a party uses a document in a manner that is tantamount to introducing it into evidence, such as reading from it or using it in cross-examination, some courts use the rule to admit related documents or additional parts of the document. (168)
Although Rule 106 would seem to be a vehicle for introducing documents or portions of documents that would otherwise be hearsay, the rule does not expressly specify whether it authorizes the admission of evidence that would otherwise be inadmissible or whether, instead, it merely addresses the timing at which related statements that are otherwise admissible are to be introduced. The circuit courts have split on the issue. (169) However, if the purpose of introducing such documents is merely to provide context for understanding other documents that have been admitted, then, arguably, any hearsay problem is circumvented. (170)
Because e-mail messages often appear as part of a chain of threaded communications, e-mail messages are likely to be offered into evidence under the doctrine of completeness. One example can be seen in Rathje v. Scotia Prince Cruises, Ltd., (171) where the doctrine of completeness was used to admit e-mail messages in the face of objections to the substance of the messages on grounds other than hearsay. In that case, certain employees brought wrongful termination claims against their employer. In response, the defendant counterclaimed for breach of fiduciary duty on the grounds that the employees had failed to properly maintain the vessel on which they worked and had engaged in self-dealing. The dispute arose out of a number of administrative changes that were made with respect to the operation of the vessel after ownership of the defendant changed hands, including potential changes in two of the employees' salaries and the potential termination of one of the employees. After details of the changes were revealed to the employees by a third party, a series of e-mails were exchanged in a chain of communications that was introduced into evidence as a single exhibit. First, the employees sent a message to the new owner of the defendant expressing their dissatisfaction. Second, the owner replied with a message that addressed the various points raised by the employees. Third, the employees replied to this message with a point-by-point response. Fourth, the owner replied, in turn, with a message and with copies of the employees' earlier e-mail interpolated with comments by the owner. Among other things, the owner's reply stated that he considered the employees to "have effectively resigned" and that he was prepared to provide them with pay "on an ex gratia basis" during the sixty day notice period before the employees were entitled to terminate their contracts. (172) The defendant objected to this portion of the owner's final response--not on hearsay grounds--but on the grounds that it contained an offer to settle the claims, which would be barred by Rule 408. The court held that the e-mail "is admitted for the purposes of completeness of the story of the parties' ongoing dealings rather than as proof of [the defendant's] liability for, or the invalidity of, a claim or its amount." (173) The ruling is particularly instructive insofar as the threaded communication at issue is typical of e-mail chains in commercial litigation. (174)
2. Business Records
Because e-mail is now used so pervasively in corporate communications, it is tempting to view e-mail messages as likely business records. (175) Rule 803(6) establishes a number of foundational elements for the business records exception. First, the record must be in the form of a "memorandum, report, record, or data compilation, in any form...." (176) Second, the record must set forth "acts, events, conditions, opinions, or diagnoses...." (177) Third, the record must have been "made at or near the time" of the acts, events, conditions, opinions, or diagnoses recorded. (178) Fourth, the record must have been made "by, or from information transmitted by, a person with knowledge...." (179) Fifth, the record must have been "kept in the course of a regularly conducted business activity...." (180) Sixth, it must have been "the regular practice of that business activity to make the memorandum, report, record or data compilation...." (181) Finally, even if these other foundational elements are established, the record, nevertheless, will not be admissible if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." (182)
a. Type of Record
With respect to the type of record requirement, e-mail messages certainly fall within the categories that Rule 803(6) establishes as candidates for business record status. Rule 803(6) applies to a "memorandum, report, record, or data compilation, in any form...." (183) As explained by the Advisory Committee's note, the term "data compilation" was intended to be "broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form" and was meant to include "electronic computer storage." (184) Thus, e-mail messages are capable of serving as a business record. (185)
b. Type of Information Recorded
For many, but not all, e-mail messages, the type of information recorded should not be an obstacle to meeting the business records test. Rule 803(6) applies broadly to "acts, events, conditions, opinions, or diagnoses...." (186) These categories are sufficiently broad to cover the contents of most e-mail messages authored by employees of companies. For example, one decision involving e-mail implies that telephone conversations with an investment banker's clients can be the type of act or event reflected in a business record. (187)
The contemporaneity requirement is designed to ensure that the record will be accurate. (188) In most cases, the information contained in the record itself will establish whether the record is sufficiently contemporaneous with the events recorded. (189) With writings in general, there is typically some lapse in time between the event recorded and the recording, which provides grounds for arguing insufficient contemporaneity. (190) Nevertheless, in the context of the business records exception, courts apply this requirement liberally in order to account for the realities of business record-keeping. (191) Furthermore, delay between the time that a computerized record such as an e-mail is made and the time that it is printed out of the computer system should not prevent printouts of e-mails from satisfying the contemporaneity requirement. (192) In certain cases, more lax practices in connection with generating e-mails will likely make the contemporaneity requirement more difficult to satisfy.
d. Personal Knowledge
The "person with knowledge" requirement is construed liberally. (193) To satisfy this requirement either the supplier of the information recorded must have had personal knowledge of that information or an employee of the business must have verified the information. (194) However, a number of courts have admitted business records where the person supplying the information recorded was anonymous. (195) Indeed, it has been held that the knowledge requirement can be satisfied by such circumstantial evidence as whether a record of the type at issue for a business of the type in question is likely to be maintained with accuracy. (196) Furthermore, hearsay statements recorded in business records will be admissible if they independently satisfy other exceptions to the hearsay rule. (197) In instances in which the person recording the information lacks personal knowledge, however, the record may be given less evidentiary weight. (198)
The knowledge requirement has caused the exclusion of an e-mail offered as a business record in at least one reported decision to date. Specifically, in Rick v. Toyota Industrial Equipment Co., (199) where the plaintiff sued the defendant for injuries suffered as a result of a forklift truck operated by a co-employee, the plaintiff offered into evidence an e-mail as a business record to establish that the defendant manufactured the forklift truck. The e-mail contained a listing of forklift trucks manufactured by the defendant and used by the plaintiff's employer. It was obtained by a claims examiner for the employer at the request of the plaintiff's counsel. The claims examiner obtained the e-mail record from a Terminal Manager for the employer. (200) The court held that the e-mail was inadmissible as a business record given that it was prepared at the request of the plaintiff's counsel and appeared to be based on what the court characterized as "misinformation" provided by the Terminal Manager who was not demonstrated to have been a person with knowledge. (201) The decision appears to have been influenced by independent evidence establishing that the only forklift trucks of the employer's that possibly could have been involved in the occurrence were manufactured by a company other than the defendant. (202)
e. Manner of Recording
The manner in which the record is kept may impose more of an obstacle, but that obstacle will often be overcome in light of the increasingly regular and systematic use of e-mail, within companies, to report all manner of information. Rule 803(6) requires that the record be "kept in the course of a regularly conducted business activity...." (203) As the Advisory Committee note explains, this "regularity and continuity" helps to ensure that hearsay statements reflected in business records are reliable due to "habits of precision...." (204) This element was held to be satisfied with respect to an e-mail message in which the author recounted a telephone communication by the defendant where the author testified that he had a "routine practice" of using e-mail messages to report important telephone calls to co-workers in the relevant circle and to do so "immediately following" such telephone calls. (205)
Care must also be taken to assess other sources of information reported in any e-mail message offered as a business record. To ensure the accuracy of information admitted under the business records exception, the Advisory Committee note makes clear that the requirement of acting in the regular course of business applies not only to the person compiling the report but to "[a]ll participants, including the observer or participant furnishing the information to be recorded." (206)
f. Regular Practice of the Business
Merely recording the requisite information in the requisite form in the course of a regularly conducted business activity, however, is not enough. Rule 803(6) also requires that the business activity in question be one that had a "regular practice ... to make" the type of record in question. (207) As the Advisory Committee note explains, where an employee has "a duty to make an accurate record as part of a continuing job or occupation," the hearsay statements contained in business records are inherently more reliable. (208) This element is likely to be one of the key points of contention in determining whether many e-mail messages are admissible as business records.
Although some e-mail messages will likely pass this threshold, this element is likely to stand as the greatest obstacle to admitting most e-mail messages into evidence. Although systematic use of e-mail to communicate about business matters is the norm for numerous businesses, far less often have those businesses established procedures requiring that e-mail be used to collect specific types of information in a particular format in regular fashion. (209) For example, in United States v. Ferber, (210) even though the court found that the author of an e-mail message had a routine practice of sending to relevant co-workers e-mail messages reflecting the content of important telephone calls, the court held that the business records foundation was not satisfied because there was no evidence that the author's employer required such records to be made and maintained or itself followed such a routine. Without "some evidence of a business duty to make and regularly maintain records of this type," the e-mail message was inadmissible. (211) "Were it otherwise, virtually any document found in the files of a business which pertained in any way to the functioning of that business would be admitted willy-nilly as a business record." (212)
A similar concern appears to have prompted the Ninth Circuit's dicta in Monotype Corp. v. International Typeface Corp. (213) In that case, after sustaining the trial court's exclusion of an e-mail message as unfairly prejudicial, the Ninth Circuit went on to discuss the business records exception and observed that the e-mail message in question was distinguishable from computer printouts of monthly bookkeeping records because the e-mail was far less systematic as a form of recording information. (214) The court noted: "E-mail is an ongoing electronic message and retrieval system whereas an electronic inventory recording system is a regular, systematic function of a bookkeeper prepared in the course of business." (215)
This type of problem is neither new nor unique to e-mail. For example, in a 1957 decision, the Ninth Circuit's observations on why many forms of interoffice communications do not qualify as maintained pursuant to internal procedures requiring systematic recordkeeping apply with equal, if not greater, force to e-mail:
Concerning almost all of the items comprising the grist of interoffice memoranda and letters which were introduced, the nonexistence of any such company procedure seems almost self-evident. They were patently intended as communications between employees, and not as records of company activity. Many of them were casual and informal in nature, seeking or providing information of a kind which could be, and no doubt often was, communicated by telephone or in conference. Most of them were apparently written as the result of the exercise of individual judgment and discretion. (216)
g. Trustworthiness of Source, Method, and Circumstances
Although the trustworthiness ground for exclusion is often applied to records that contain opinions lacking factual basis or expert qualification, or that were prepared in anticipation of litigation, this ground for exclusion may also be applied to circumstances relating to the other foundational requirements, such as the manner in which the record was made. (217) In cases involving other types of computer-generated business records, there was an early indication that a more stringent foundation might be required than for ordinary business records, (218) but courts have come to treat computer-generated business records as no different than any other type of business record. (219) Indeed, courts have admitted computer-generated records even where the custodian has been unable to testify that the computer was used under proper operating conditions or under airtight security procedures. (220) However, as discussed above, in the 1994 decision of Monotype Corp. v. International Typeface Corp., (221) the Ninth Circuit distinguished e-mails from other forms of computer-generated records, such as periodic bookkeeping entries, by noting that e-mail can be used far less systematically and in a more ongoing fashion. (222) Nevertheless, without addressing the business records exceptions specifically, a more recent Eleventh Circuit decision has held that any claim that the proponent of an e-mail message has not adequately demonstrated the true identity of the author of the message is an objection that goes to authenticity and not hearsay. (223) Indeed, given the fact that e-mail is used far more pervasively today than when Monotype was decided, at least one commentator has questioned whether the same court would reach a different result today. (224)
3. Excited Utterance
Given the spontaneous, casual, quick, and often reactive manner in which many e-mail messages are sent, one might expect the excited utterance exception to provide a vehicle for admitting many e-mail messages into evidence. Specifically, under Rule 803, the hearsay exclusion will not apply to "[a] statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." (225) The exceptions in Rule 803 are designed to admit certain types of hearsay statements that have sufficient "circumstantial guarantees of trustworthiness" to justify admitting them into evidence despite the fact that the declarant is not subject to cross-examination. (226) The excited utterance exception is premised on the theory that persons who are excited by particular circumstances will not have the ability to reflect on those circumstances and consciously fabricate when acting in that condition of excitement. (227)
To lay the foundation for the excited utterance exception, the proponent must establish: that a startling event occurred, that the declarant experienced a state of excitement, that the statement at issue was made while the declarant was under the stress of that excitement, and that the statement is relevant to the event that induced the excited condition. (228) In the context of commercial litigation, the admissibility of e-mail messages is likely to turn on whether the event in question was sufficiently startling and whether the statement was made while the declarant was still under the stress of excitement.
a. Startling Event
In most reported decisions, the startling nature of the event in question is so obvious as not to present a seriously contested issue. (229) In commercial cases, however, many events that provoke someone to send an e-mail message simply will not be sufficiently startling to trigger the excited utterance exception. Rather, the types of events that are sufficiently startling to trigger this exception typically occur in criminal cases or civil litigation involving personal injuries or wrongful deaths. Such cases often involve the type of violent, gruesome, or threatening events that, without question, are likely to shock. (230) Although a leading commentator argues that "non-sanguinary" events may be sufficiently startling if they sufficiently "shock" the declarant, the examples offered by that commentator involve a declarant's awareness of a planned murder and an instance in which a declarant was unexpectedly confronted with a photograph of her assailant. (231) The startling event element has also been found satisfied in cases where the declarant had been in an automobile accident or was experiencing the pain and shock of a heart attack. (232) Nevertheless, the cases are highly fact-specific, and, consequently, generalizations are hazardous. Accordingly, while zeligibility for the excited utterance exception may be unusual in the commercial context, it cannot be ruled out as a matter of law.
b. Under Stress of Excitement
In the event that the hurdle of the stressful event element can be cleared, statements made in e-mail messages are likely to provoke hard fought and fact driven battles over whether the statements were made sufficiently proximate to the stressful event to fall within the exception. (233) A statement need not have been made contemporaneously with the event at issue to qualify as an excited utterance, but the declarant must have been still under the stress of excitement at the time that the statement was made. (234) In many cases, delay between the event and the statement will, as a practical matter, be an insurmountable obstacle. (235) "The exception contemplates stress caused by the event itself, and not by reflection on the event." (236) By contrast, the prototypical excited utterance is the frantic telephone call to 911 by a victim during the midst of a violent assault. (237)
Nevertheless, notwithstanding the fact that delay militates against a finding that a declarant was still operating under the stress of excitement when making a statement, there is no fixed time limit beyond which delay will disqualify a statement as an excited utterance. Rather, the statement and its surrounding circumstances must be examined to determine whether the statement was prompted by a startling event. (238) "But the length of time between the incident and the statement is important; the further the statement from the event, the more difficult it becomes to determine whether the statement is the result of reflection, influenced by other factors." (239) In the context of statements made in writing, many of the circumstances pertaining to whether delay indicates that a statement was made under the stress of excitement will frequently point to the conclusion that the statement is not an excited utterance.
One circumstance that will militate toward a finding that a delayed statement is not an excited utterance is the existence of any intervening event that breaks the chain of causation between the startling event and the statement or that induces greater thought or reflection before the statement is made. (240) "If the exclamations, or words, or gestures are not directly impelled by the happening, but may be separated from the act by intervening actions or the exercise of a choice or judgment, they cannot be deemed a part of the res gestae and are, therefore, hearsay." (241) Even where a declarant experiences a severely traumatic event and makes a statement shortly thereafter while visibly upset, intervening actions by the declarant may show that the statement was not a sufficiently spontaneous and instinctive reaction to the event to qualify as an excited utterance. For example, where a truck driver struck and killed a woman and child walking across an intersection and then inspected the truck, walked to a service station, dialed a number, and reported the accident with a consistent detailed description that was repeated multiple times, the court held that the driver's report was not an excited utterance, even though a witness testified that the driver was so shaken when he made the report that his legs appeared "rubbery." (242)
One type of intervening event that may break or lessen the influence of stress upon the declarant is questioning by, or dialogue with, others--especially where the intervening questions or statements by others prompt the declarant to make the statement at issue. (243) In particular, a thorough and thoughtful response to a request for information is not consistent with a spontaneous and instinctive statement. (244) However, as with delay, there is no absolute rule whereby intervening questioning or statements by others will automatically disqualify the declarant's statement from being an excited utterance. "An excited utterance may be made in response to questioning, but this tends to counter the element of spontaneity." (245) Particularly where the declarant is the victim of a violent crime, courts have been willing to admit statements elicited in response to brief inquiries by the police. (246) Given that e-mail allows interactive communication, the limited circumstances in which courts have permitted interactive communications to be admitted as excited utterances should be kept in mind when evaluating the admissibility of e-mail messages.
One obvious indicator of whether the declarant was still operating under the influence of stress at the time of the statement is the declarant's demeanor at that time. (247) Testimony as to any change or consistency in the declarant's demeanor during any time lapse between the event and the statement can be particularly persuasive. (248) However, whereas an oral statement is made to a recipient who typically can be compelled to testify regarding the declarant's demeanor, that is not the case with written statements. (249) The absence of any evidence as to the declarant's demeanor presents an obstacle to establishing a statement to be an excited utterance--an obstacle that has recurred with a variety of writings and is similarly likely to arise with e-mail messages. (250)
One circumstance that can be used as an indicator of the declarant's state of mind, similarly to evidence of demeanor, is the style of the declarant's statement. For example, a careful and precise compositional style is less consistent with an excited utterance than is broken English and imperfect expression of incomplete thoughts. (251) In this realm, however, generalizations cannot be accepted as certainties. For example, a declarant's deviation from a deliberate compositional style could potentially be attributable to a variety of influences other than the stress of an exciting event. (252) By contrast, a more deliberate compositional style is not necessarily inconsistent with an excited utterance where the declarant is in the habit of communicating in that fashion. (253)
Another indicator of the declarant's state of mind is the substantive contents of the declarant's statement. (254) "A declarant's ability to provide detailed information about the event ... tends to show a calm, reflective state of mind. (255) Consequently, lengthy and detailed writings have been held ineligible for the excited utterance exception. (256) Similarly, the inclusion of content unrelated to the startling event may "imply ... [the declarant's] reflection and deliberation in composing the statement." (257) Nevertheless,
[t]he inclusion of background information in and of itself [does] not preclude a finding that the statement was an excited utterance [where] that background was 'related to the circumstances of such startling occurrence.' ... Such inclusion, however, is more typical of a narrative or reflective statement than of a spontaneous statement." (258)
Thus, particularly where there is evidence that a declarant made a statement shortly after a highly traumatic event and was visibly upset, the inclusion of detail will not necessarily render the statement ineligible for the excited utterance exception. (259) By contrast, the inclusion of self-serving assertions in the declarant's statement will call into question the statement's status as an excited utterance. (260)
Finally, another circumstance relevant to determining whether a writing was made while the declarant was influenced by an excited condition is the type of the writing. For example, very formal types of documents are not consistent with spontaneous, non-reflective communication. (261) Similarly, certain types of writings such as diary or journal entries are, by their nature, reflective and contemplative and, therefore, less likely to be excited utterances. (262) By contrast, many e-mail messages are likely to be informal and neither reflective nor contemplative, although certain e-mail messages can be as formal, deliberate, thorough, contemplative, or reflective as any other type of writing.
On the whole, many of the factors relevant to whether a statement was made while the declarant was still influenced by an excited state of mind are problematic when applied to most writings. Evidence of the declarant's demeanor is often unavailable. Committing a statement to writing often involves some amount of delay from the event at issue, which opens the possibility of intervening events. Even the very act of writing may suggest a certain cool-headed response to a stressful event that is inconsistent with an excited utterance. (263) Indeed, writing is, by its nature, often a "naturally more reflective activity ... than speaking." (264) Furthermore, the contents or types of certain writings will make it all the more unlikely that those statements are excited utterances.
As a result of this congeries of circumstances, some courts have questioned whether any writing can ever be an excited utterance. (265) Generalizations in this area, however, are hazardous. For example, where the victim of a traumatic and gruesome crime writes the perpetrator's name in the victim's blood, few would question the admissibility of such a writing as an excited utterance. (266) Consequently, some courts have proceeded more cautiously. For example, in holding that a facsimile transmission by an alleged domestic violence victim did not constitute an excited utterance, the Massachusetts Supreme Judicial Court concluded: "We decline to establish a categorical rule, as we can envision rare circumstances in which a writing, whether in the form of a facsimile transmission or otherwise, would be considered a spontaneous exclamation made when a person is in an excited or agitated state." (267)
Similarly, in a decision that touched on the potential use of e-mail messages as excited utterances, the Oregon Court of Appeals rejected a categorical approach under which all writings would be per se ineligible for the excited utterance exception. Specifically, in State v. Cunningham, (268) the court held that handwritten notes made by a victim the night she was murdered were admissible as excited utterances, given the close proximity between the time the notes were made and the startling event and given the victim's habit of contemporaneous note-taking. In rejecting the per se exclusion for writings sought by the defendant, the court noted that "picking up a pen and writing" does not necessarily obviate spontaneity any more than "picking up a telephone and dialing 911." (269) The court also noted that such a per se rule would render inadmissible a bank teller's scrawled note seeking help when confronted by an armed robber. (270) Finally, as further justification for rejecting such a per se rule for writings, the court stated: "The same [automatic exclusion] would categorically be true of all e-mail messages." (271)
Notwithstanding Cunningham's implication that e-mail messages may be more likely eligible for the excited utterance exception than most writings, many e-mails will, undoubtedly, face the same obstacles to admission as other writings. Furthermore, these obstacles are likely to be even more formidable in most commercial litigation, which is typically devoid of the types of violent events that precipitate so many excited utterances in criminal cases.
The difficulties inherent in applying the excited utterance exception to e-mail messages in commercial litigation can be seen in United States v. Ferber, (272) a criminal case involving white collar crime in a commercial setting. In Ferber, the court held that an e-mail message did not qualify for the excited utterance exception despite the immediacy with which the e-mail message was sent following the event that was the subject of the message and despite an exclamatory comment at the end of the message. (273) Specifically, in Ferber, where the defendant was convicted of violating his fiduciary duties to public entities by giving an investment bank an unfair advantage in bidding on bond underwriting, the government introduced an e-mail message from an employee of the investment bank to his supervisor recounting a conversation with the defendant in which the defendant had inculpated himself. The government attempted to lay the foundation for the excited utterance exception with testimony by the employee that he wrote the message "very shortly" after the conversation recounted in the message, that he "was very upset" and "panicked," and that the message ended with the exclamation "my mind is mush!" (274) Nevertheless, the court held that the message did not qualify for the excited utterance exception given its detail and length and given the possibility that the employee had spoken to someone else before composing the message. Because these circumstances indicated that the employee had time to reflect and fabricate before composing the message, the court held that the message could not qualify as an excited utterance. (275)
4. Present Sense Impression
Even where an e-mail message was not composed with the type of spontaneity to qualify as an excited utterance, it may, nonetheless, reflect a different type of spontaneity sufficient to admit the e-mail message under the present sense impression exception to the hearsay rule. Specifically, under Rule 803, the hearsay exclusion will not apply to "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." (276) The present sense impression exception is premised on the theory that a witness who makes a statement sufficiently contemporaneous with an event or condition described in that statement is unlikely to misrepresent the event or condition deliberately or consciously. (277) Among other things, the present sense impression exception may be useful for obtaining documentary evidence of a conversation (assuming that the statements in the conversation are not themselves excluded by the hearsay rule). (278)
To lay the foundation for the present sense impression exception, the proponent of a statement must show: that the declarant made the statement contemporaneously with an event or condition, that the declarant actually perceived that event or condition (although participation by the declarant is not necessary), and that the statement describes or explains the event or condition. (279) In light of the qualities that are typical of so many e-mail messages, this Article will focus on whether an e-mail message is contemporaneous with the event or condition and whether the e-mail message is limited to a description or explanation of that event or condition. This focus, however, should not diminish the importance of the requirement that the declarant have actually perceived the event or condition that is the subject of the statement--a requirement that can present special obstacles when the declarant is not available to testify as to his or her perception. (280)
Although e-mails are often sent hastily and with too little time for reflection, some messages are sent after careful drafting and revision and e-mail messages are by no means inherently limited in subject matter to recent events. Accordingly, the contemporaneity element will require careful attention.
Because precise contemporaneity is usually not possible, the Advisory Committee note recognizes that a "slight lapse" in time between the event or condition and the statement will not preclude the statement from constituting a present sense impression. (281) Furthermore, the absence of any need to show that the declarant was under the impact of any excitement generated by the event may make the present sense impression exception a more useful vehicle for admitting writings into evidence than the excited utterance exception. However, the requirement that the declarant make the statement while perceiving the event or immediately thereafter may be seen as requiring a shorter period of time between the event and statement than the excited utterance exception, which permits delay as long as the declarant is still under stress. (282)
Regardless of whether the temporal requirements of the present sense impression exception provide the proponent any advantages over the excited utterance exception, as with the excited utterance exception written statements may contain indicia that they were not made sufficiently contemporaneously with the event or condition described to qualify as present sense impressions. Most obviously, delay between the event or condition and the statement may indicate that the statement was not made sufficiently contemporaneously and is, therefore, too reflective. (283) Although many e-mail messages are composed and transmitted at the spur of the moment, such messages are also sent at varying times following the events recounted. Because the time that the message was transmitted may be recorded on the message, determining contemporaneity may be easier with e-mails than with other writings.
Another indicator of whether a written statement is too reflective to constitute a present sense impression is whether the statement was subject to revisions or multiple drafts. If so, it may appear that the declarant was carefully reflecting on the matter and not describing it spontaneously. (284) Again, while far too many e-mail messages are composed and transmitted with too little thought given to their contents, e-mail messages can also be the subject of drafts and revisions. Indeed, computers may make revisions easier than is the case with handwriting, which requires blotting out words or starting again with a new piece of paper to make revisions. Discovery of electronic drafts or testimony as to the composition of a message may shed light on this factor.
As with the excited utterance exception, another indicator of whether a writing is sufficiently spontaneous to qualify as a present sense impression is the type of the writing or the nature of its contents. Certain types of writings and certain types of statements made in writings may indicate that the writing is too reflective to be a present sense impression. (285) The spontaneous character of many e-mail messages will likely lead many courts to hold that an e-mail message is not a type of writing that should automatically be deemed too reflective to be an excited utterance. The use of e-mail for periodic reports or more formal correspondence, however, may lead to a different outcome. Furthermore, contents of messages that reflect careful, and deliberate thought may disqualify the e-mail message from eligibility for treatment as an excited utterance.
As with the excited utterance exception, if the declarant's statement was elicited by another, that circumstance may also tend to show that the statement is not a present sense impression. For example, where the proponent of such a statement had elicited the statement from the declarant, then the statement has been held to fall outside the present sense impression exception. (286) Thus, where an e-mail message appears as part of a threaded communication between the declarant and the proponent, the declarant's message must be evaluated to determine whether the contents appear to be elicited by another or appear to be a spontaneous description of an event.
Finally, as with excited utterances, content that is self-serving will make a declarant's statement suspect. (287) Certainly, e-mail messages can be as self-serving as any other type of writing.
An example of how the present sense impression exception may be more useful than the excited utterance exception for introducing e-mail messages in commercial litigation can be seen in United States v. Ferber, (288) which was discussed above in connection with the excited utterance exception. As described above, Ferber was a white collar criminal case in a commercial setting where an e-mail message was held not to qualify as an excited utterance because it was composed after sufficient time to "reflect" and "fabricate." Nevertheless, the court admitted the message into evidence as a present sense impression. Although recognizing some tension between this admission and the excited utterance exclusion, the court observed that a present sense impression may be made a short period of time after the event recounted when the declarant is no longer under the "stress" of the event. Although the employee in Ferber sent his message when no longer under the "stress" of the telephone call that was recounted, "it was prepared shortly afterward and therefore qualified as a present sense impression." (289)
b. Description or Explanation of Event or Condition
E-mail messages are likely to present at least two types of problems in connection with the requirement that they describe or explain the event or condition in order to qualify as a present sense impression of that event or condition. First, a declarant may fabricate a description of an event or condition contemporaneously with experiencing that event or condition. Second, the communication embodying the declarant's description of the event or condition may not be focused.
First, if a declarant fabricates a description of an event or condition, then the declarant's statement is not truly the declarant's present sense impression of that event or condition, even if made contemporaneously with that event or condition. Thus, for example, where a witness to an armed robbery observed the license plate number of the getaway car and wrote it down on a folder and where that writing was offered as evidence in the robbery trial but the declarant did not appear as a witness, the court held that the writing did not constitute a present sense impression because the declarant "appear[ed] to have responded with admirable coolness and deliberation first in observing and then in memorializing a vital clue." (290) Accordingly, while the present sense impression exception should not require the same anxiety inducement for the communication as the excited utterance exception, in some instances the deliberate nature of a communication--particularly a written communication--may cast doubt on whether that communication is a candid reflection of the declarant's present sense impression.
Second, merely because a declarant is prompted by an event to say something in candor does not mean that anything the declarant says in candid reaction to the event will constitute a present sense impression. If the statement does not actually describe or explain the event, then the exception will not apply. (291) This requirement is more restrictive than the nexus required by the excited utterance rule under which the statement need only relate to the event in question. (292) Accordingly, where police officers apprehended two suspects in a mobile home and discovered a gym bag containing cocaine in the trunk of the mobile home and where one of the suspects acknowledged ownership of the bag and stated that the other suspect had put the bag in the trunk, the statement did not qualify as present sense impression because "the subject matter of the statement ... was not what the declarant was presently perceiving when the statement was made, but rather something which had occurred at a remote previous time, namely whenever the gym bag was placed in the trunk." (293)
Not only is the present sense impression exception inapplicable to statements about background circumstances relating to the event or condition that prompted a statement, but the exception is also inapplicable to subjective interpretations of the event. For example, in a securities fraud case, where the plaintiffs offered notes that an analyst had taken during conversations with executives of the company at issue, those notes did not constitute the analyst's present sense impression of the conversations because the analyst testified that the notes consisted of interpretations and analyses. (294)
On the other hand, where the declarant records the statement of another and also records feelings that the declarant experienced in response to the recorded statement, the declarant's entire record may be admissible as a present sense impression. For instance, in an assault prosecution, whether the victim recorded in a notebook an abusive statement made by the defendant to her, along with the feelings that this statement caused her to experience, including apprehensions about "trouble" that would likely follow because of the defendant's "bad mood," the note was held admissible as a present sense impression. (295)
5. Then Existing State of Mind
Rule 803 excepts from the hearsay exclusion "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)" subject to certain limitations. (296) According to one commentator, the exception is based on "trustworthiness and necessity." (297) According to another commentator, the exception is based on the belief that such statements are likely to be made spontaneously and with sincerity. (298) Thus, the statement of then existing state of mind exception involves considerations similar to those involved in the excited utterance and present sense impression exceptions. Indeed, one court has observed that "the exception under rule 803(3) is a specialized application of the present sense impression and excited utterance exceptions preceding it in Rule 803." (299)
As with other hearsay exceptions applicable to the thoughts or reactions of the declarant, applying the then existing state of mind exception to writings presents issues regarding the timing of the statement at issue. The phrase "then existing state of mind" refers to the declarant's state of mind at the time the statement is made. (300) Thus, for example, a declarant's prior writings have been held to be irrelevant to the declarant's state of mind during acts committed years later. (301) Similarly, letters written months or even weeks after the events described in the communications have been held to be ineligible for admission as statements of the declarant's then existing state of mind. (302) Indeed, the Seventh Circuit has observed that "'the act of letter writing usually provides as much time as the writer might want to fabricate or misrepresent his thoughts' so the 803(3) exception generally does not apply." (303)
Nevertheless, as discussed in connection with the other hearsay exceptions, it is hazardous to make blanket generalizations about writings in light of the infinite differences in types, purposes, and styles of writings. Indeed, the seminal Supreme Court decision embracing the then existing state of mind exception involved a letter. (304) Furthermore, courts allow a certain amount of leeway in admitting statements before and after the precise moment at issue on the ground that a state of mind may continue for some period. (305) Indeed, the Fifth Circuit has held that a document written one year before the events at issue was admissible as a statement of an existing state of mind. (306)
Not only must the statement reflect the declarant's state of mind at the time of the statement, but the statement may not be used to prove earlier acts. Specifically, Rule 803 provides that the then existing state of mind exception to the hearsay rule does not apply to "a statement of memory or belief to prove the fact remembered or believed" other than in limited instances involving wills. (307) Maintaining the hearsay exclusion with respect to such statements of memory or belief was deemed necessary to prevent this exception from swallowing the hearsay rule altogether by allowing hearsay statements as to state of mind to provide a basis for inferring the occurrence of an event that precipitated that state of mind. (308) Particularly in circumstances where the expression of the then existing state of mind is ambiguous, the presence of other factual assertions can lead to exclusion of the entire writing. (309) Furthermore, where such statements are committed to writing, the writings are often too reflective upon past states of mind and past events, particularly when separated from the time at issue by intervening events, to be admissible as the state of mind of the declarant when making that writing. (310)
Accordingly, the type, style, and contents of a writing are likely to affect whether that writing can qualify as a statement of then existing state of mind. For example, the fact that a letter went through several drafts was held to show that the declarant had too much time to reflect on the events described for the letter to qualify as a statement of then existing state of mind. (311) Similarly, a newspaper editorial in which the author justified and apologized for past conduct was held to be too reflective to qualify as a statement of then existing state of mind. (312) If a writing contains self-serving statements, those statements may be seen as an indicator that the writing is a conscious reflection on events rather than a statement of then existing state of mind. (313) The Second Circuit, however, has held that a writing is not rendered ineligible for the then existing state of mind exception merely because it contains self-serving statements or because its lack of contemporaneity creates a probability of fabrication. Rather, the court held that a writing that literally falls within the letter of Rule 803(3) will be admissible even when such circumstances cast doubt on trustworthiness. (314) Nevertheless, in the same decision, where the trial judge had found a letter ineligible for the state of mind exception because of the letter's "self serving" quality, the Second Circuit upheld the ruling on the ground that the letter was "a statement of memory or belief." (315) Thus, many of the qualities that cast doubt on the trustworthiness of certain writings may be signs that the writing is not a statement of then existing state of mind but rather, is a statement of memory or belief. (316)
As discussed in connection with the excited utterance and present sense impression exceptions, because many e-mail messages are composed more spontaneously and with less care than other types of writings, they may be less susceptible to problems that other types of writings typically encounter in satisfying hearsay exceptions that require contemporaneity and lack of reflection. For example, an e-mail message was held to be admissible as a statement of then existing state of mind in Mota v. University of Texas, (317) a case in which a professor brought sexual harassment and retaliation claims against the university at which he taught. The e-mail message was sent by the university's president to all university employees and claimed that the plaintiff had not been fired but had failed to return to work at the expiration of his leave. The court found that the message was part of a continued pattern of vindictive behavior in its attempt to portray the plaintiff in the worst possible light. (318) The court's conclusion that the e-mail message satisfied the then existing state of mind exception was cursory. (319)
Despite the prohibition on using out-of-court statements to prove earlier acts, a declarant's statement of then existing state of mind may be introduced to allow the jury to infer that the declarant later took some action consistent with that state of mind. This rule was established by the Supreme Court's 1892 decision in Mutual Life Insurance Co. v. Hillmon. (320) Although Rule 803 does not expressly address the Hillmon rule, the Advisory Committee note states that "[t]he rule of Mutual Life Insurance Co. v. Hillmon ..., allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed." (321) Nevertheless, because the probative value of a statement of intent to commit an act for proving that the act was actually committed is debatable, such statements may be excluded more than other types on the ground that their probative value is outweighed by the dangers of prejudice, confusion, or waste of time. (322)
While a statement of the declarant's then existing state of mind is admissible to prove that the declarant later acted consistently with that state of mind, whether such a statement is admissible to prove that another party acted in any manner is less clear. When the House Judiciary Committee approved Rule 803(3), the Committee expressed its intention that the rule should be interpreted "to limit ... Hillmon ... so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person." (323) Although such statements have been admitted, subject to limiting instructions, in cases involving joint action by the declarant and another, such statements are probably not admissible when offered solely to prove the actions of one other than the declarant. (324) Thus, in Brooks v. State, (325) an e-mail by a murder victim to a co-defendant (who was the victim's cousin and the defendant's paramour) indicating her intent to drive to town with the co-defendant on night of murder was not admissible to show that the defendant subsequently drove to town with the victim. (326)
Many cases involving the then existing state of mind exception turn on whether the declarant's state of mind at the time was actually at issue in the case. This issue can turn on subtle distinctions. For example, in a dispute over the terms of an oral contract, although the plaintiff's understanding of those terms was held to be relevant and a proper subject of testimony by the plaintiff, it was held that the plaintiff could not bolster that testimony by offering evidence of earlier out-of-court statements by the plaintiff as to what he understood the contract's terms to be because his state of mind at the time of the statements was not at issue and the statements could only be offered for the truth of the matters asserted. (327)
By contrast, if the declarant's state of mind at the time of the statement demonstrates a fact at issue, then the declarant's expression of that state of mind will be admissible. For example, where the plaintiffs claimed that the defendant's actions in handling accounts receivables purchased from the plaintiffs caused the plaintiffs' businesses to lose good will of customers, angry letters from customers regarding the defendant's handling of their accounts were held admissible as evidence of the customers' then existing state of mind on the ground that anger of customers generates loss of good will, which was at issue. (328)
Whether the defendant's state of mind at the time of the statement was at issue is a feature of those reported decisions under the exception that involve e-mail. For example, in People v. Jovanovic, (329) in which the defendant was accused of kidnapping and sexual assault, the court held that e-mail messages between the complainant and the defendant were admissible to show whether the complainant's state of mind was consistent with consent to the alleged conduct and whether the defendant's state of mind was consistent with a reasonable belief that the complainant was consenting to the alleged conduct. (330) Similarly, in People v. Lee, (331) where the defendant was accused of having forged an e-mail message to make it appear as though her supervisor had terminated her at the instruction of her employer's chief executive officer, who had dated the defendant, e-mail correspondence between the defendant and the chief executive officer were held admissible to demonstrate her motive in seeking to obtain a financial payment from the chief executive officer, and e-mail correspondence concerning the supervisor's reasons for terminating the defendant were held admissible to show the supervisor's state of mind. (332)
Although the reported decisions involving e-mail arise in other contexts, a number of the prototypical situations in which the declarant's state of mind is at issue arise in commercial litigation, including statements by a customer expressing reasons for refusing to deal with a supplier or dealer, statements indicating motive, and statements indicating that the declarant did not intend to defraud another party. (333) Accordingly, this exception is likely to arise in commercial litigation involving e-mail.
One commercial context in which the admissibility of writings as statements of then existing state of mind tends to recur is in trademark litigation. In such cases, many courts use the then existing state of mind exception to admit into evidence out-of-court statements by third parties indicating confusion between the respective products sold under the parties' respective marks in order to demonstrate infringement, which turns on the likelihood of such consumer confusion. (334) Such out-of-court statements by the consuming public, however, can raise questions about reliability. For example, such statements may be too vague and lacking in context to be probative of any significant likelihood of consumer confusion. (335) In addition, such statements may be prompted by inattentiveness by the consumer rather than actual confusion. (336) Nevertheless, most, but not all, courts appear to treat such issues as going to the weight rather than the admissibility of such evidence. (337)
It would hardly be surprising to find such problems of reliability in consumer communications by e-mail given the careless manner in which many e-mail messages are composed and transmitted. Indeed, there are at least two reported decisions where trademark plaintiffs have attempted to rely on e-mail messages as evidence of actual confusion, both of which presented precisely such problems of reliability. First, in Self-Insurance Institute of America, Inc. v. Software and Information Industry Ass'n, (338) where each party used a mark including the designation "SIIA," the plaintiff offered as evidence of actual confusion e-mail messages delivered to the plaintiff's "siia.org" address which were apparently intended for a recipient at the defendant's "siia.net" address. The court, however, held that confusion about the top-level domain name of the recipients of such messages did not constitute confusion about the respective parties' services. (339) Second, in Microware Systems Corp. v. Apple Computer, Inc., (340) where the plaintiff used the mark "OS 9" and the defendant then adopted the mark "MAC OS 9," the plaintiff offered as evidence of actual confusion over fifty printouts of e-mails and Internet postings. The court, however, found these communications to consist of subject matter that was not relevant to the issue of confusion, that demonstrated the declarants not to be confused, or that demonstrated only de minimis confusion showing the declarants' "inattentiveness." (341) These two decisions appear to treat these defects as going to the weight of the evidence rather than its admissibility, although one of the decisions addresses the e-mail messages separately from what the court referred to as the "admissible evidence" regarding confusion. (342) These courts may have simply assumed admissibility arguendo in light of the fact that each court found the respective plaintiffs' evidence to be insufficient on substantive grounds, regardless of its admissibility.
6. Past Recollection Recorded
The past recollection recorded exception to the hearsay rule is embodied in Rule 803(5). This exception allows a party to introduce into evidence "[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately." (343) The requirement that the witness have an impaired memory concerning the subject matter of the document is meant to prevent lawyers and others from carefully crafting statements in anticipation of litigation for admission under the past recollection recorded exception. (344) This impairment of memory, however, need not be total. If the witness's memory is sufficiently impaired that the witness cannot testify "fully and accurately," then the exception applies. (345)
To be admissible under this exception, any such document must also be "shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly." (346) This language embodies three requirements. First, the witness must have had personal knowledge about the subject matter of the statement. (347) Second, the statement must have been made at a time when the matters asserted were fresh in the witness's memory. (348) This requirement is based on the rationale for the exception; namely, that a statement is likely to be trustworthy when made about an event when that event is fresh in the declarant's mind. (349) Third, the statement must be shown to be accurate--either through the witness's testimony that the witness recalls making an accurate statement or through the witness's testimony that the witness would not have made the statement unless correct. (350) Although particular circumstances could make any of these requirements the subject of dispute, e-mail messages are particularly likely to present novel questions regarding the second of these requirements--whether the statement was made when the matters were fresh in the witness's memory.
In discussing the requirement that the statement must have been made when the matters were fresh in the witness's memory, one leading commentator has highlighted certain contextual factors to be used in making this determination--some of which may be useful in assessing e-mail messages. For example, two such factors are the time when the statement was made in relation to the events that are the subject of the statement and whether the statement was made before the litigation commenced. (351) Because e-mail messages typically record the times and dates sent, they are likely to facilitate application of these factors. Another such factor is the quality of the memory embodied in the statement. (352) Although application of this factor will depend upon the particular circumstances of any given e-mail message, the tendency of many to send messages without adequate reflection on their content and precision in draftsmanship may undermine the ability of many e-mail messages to satisfy this factor. (353) Another such factor is whether the statement was made spontaneously or in response to a request by a party interested in the litigation. (354) Application of this factor will depend upon whether the contents of an e-mail message disclose that the message was sent in response to such a request or if the message is a reply embodied in a chain of messages whose contents are consistent with being prompted by another party in the chain of communications.
7. Prior Consistent Statement
In certain situations, prior statements by a witness that are consistent with the witness's testimony are excluded from the definition of "hearsay." Specifically, Rule 801(d)(1) excepts from the definition of "hearsay" any statement that is "consistent with the declarant's testimony" if the statement "is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." (355) The statement must have been made before the time when the declarant was allegedly subjected to bias, influence, or motive to fabricate. (356) Furthermore, in order for a statement to be eligible for this treatment, "[t]he declarant [must testify] at the trial or hearing and [be] subject to cross-examination [about] the statement." (357) By claiming that the witness's current testimony is fabricated or has been induced by improper influence or motive, the opponent is deemed to "open the door" to entry of the prior consistent statement. (358)
E-mail is not likely to present issues unique to prior consistent statement law. As with other statements whose admissibility is contingent on timing, the fact that e-mail messages generally reflect the time and date on which they were sent will facilitate applying the rule. In addition, as with other statements whose admissibility is contingent on contents of the statements, the tendency of many to send e-mail messages without careful and thorough drafting may impact admissibility. Specifically, any e-mail message offered as a prior consistent statement must, in fact, be consistent with the witness's current testimony; although it need not be precisely identical in all details. (359) Furthermore, to the extent an e-mail message contains statements on other subjects, the trial court has discretion to exclude those parts of the message. (360)
Apart from their potential tendency to include off-topic subjects that may be candidates for redaction, the greatest impact of e-mail on prior consistent statement law may well be an increased source--and, in particular, an increased source in recorded form that may be afforded greater credibility--of statements eligible for potential treatment as prior consistent statements. Simply put, if statements that were once likely to have been made orally are now recorded in e-mail messages, they will be preserved in a manner that is not subject to the imperfections of a witness's memory and that is, perhaps, less likely to be fabricated. Thus, for example, where an employee's supervisor used his e-mail system to report a problem he was having in accessing his voicemail during a time when the employee was alleged to have accessed the supervisor's e-mail by cellular telephone in order to fabricate certain e-mail messages, that recorded report in the supervisor's e-mail was admissible as a prior consistent statement to rebut the suggestion made during the supervisor's cross examination that he had fabricated the problem of accessing voicemail. (361)
8. Statement Against Interest
Although not likely to be used with respect to communications by one's own client, one hearsay exception that may be used with respect to third party communications (as well as communications by the opposing party) is the statement against interest. Specifically, under Rule 804(b)(3), a hearsay statement will be admissible in instances where the statement was made against the declarant's interest. To satisfy this exception to the hearsay rule, the statement must have been:
so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. (362)
The statement is measured against this standard "at the time of its making...." (363) The exception is based on the theory that people are unlikely to make statements that are damaging to themselves unless such statements are true. (364) Notably, whereas the old common law rule was limited to statements regarding pecuniary or proprietary interest, Rule 804(b)(3) encompasses statements that tend to establish liability or extinguish a claim of the declarant's, statements that expose the declarant to criminal liability, and statements that expose the declarant to hatred, ridicule, or disgrace. (365) Thus, for example, where e-mail messages revealed that the author could get into trouble or be disgraced if the activities discussed in the messages were made known, the messages were held to be admissible as statements against interest. (366)
B. Communications by Opposing Party
As previously mentioned, e-mails authored by a party opponent or its employees are likely to present far fewer obstacles to admission. Although all of the exceptions to the hearsay definition and rule of exclusion discussed above in connection with statements by one's own client or a third party are potential vehicles for introducing a statement by a party opponent, in nearly all such cases the simplest vehicle for admission is the doctrine of admissions.
1. Admissions and Vicarious Admissions
Rule 801(d)(2) excludes from the definition of hearsay admissions and vicarious admissions of a party opponent. An admission is a "statement ... offered against a party" where the statement is "the party's own statement, in either an individual or a representative capacity...." (367) At least two decisions have held in perfunctory fashion that e-mails authored by a party to the action are admissible as an admission of a party. (368) The same result has been reached with respect to instant messages transmitted by a party. (369)
In the context of commercial litigation, Rule 801(d)(2) obviates the vast majority of hearsay problems that may arise with respect to documents authored within the organization of a corporate party opponent because Rule 801(d)(2)'s exception to the definition of hearsay extends not only to admissions by an individual party but also to so-called vicarious admissions. A vicarious admission is a "statement ... offered against a party" that is made "by the party's agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship." (370) The rationale for admitting such statements lies in the probability that employees are unlikely to make statements regarding issues within the scope of their employment that are damaging to their employers unless those statements are true. (371) Thus far, a few reported decisions have held--in perfunctory fashion--that e-mails authored by company employees are admissible as admissions of a party opponent. (372)
In determining whether statements are eligible for treatment as vicarious admissions, one type of question that can arise is whether an agency relationship truly existed between the declarant and the corporate party. This issue is particularly likely to arise given the increasing tendencies of corporations to use independent contractors and to have corporate affiliates. Generally, independent contractors do not qualify as agents for purposes of the rule. (373) In certain areas of substantive law, however, courts are beginning to find that independent contractors who are functionally equivalent to employees should be given the legal status of employees. (374) With respect to employees of affiliated companies, one recent decision held that a sufficient agency relationship existed to admit an employee's statements into evidence as vicarious admissions of the defendant where the employee was hired by the defendant to work for a company that was wholly owned by the defendant and that served as the "international arm" of another company owned by the defendant. (375)
Another issue that can arise with respect to a statement's eligibility for treatment as a vicarious admission is whether the statement at issue concerns a matter within the scope of the declarant's agency. This requirement, however, is quite liberal, as the statement itself need not be within the scope of the declarant's agency but need only be related to a matter within that agency. (376) Thus, as one commentator has observed, "offhand comments" in employee e-mail, are likely to be admissible--even when made on subjects about which the employee's knowledge was limited. (377)
2. Adoptive Admissions
Rule 801(d)(2) excludes from the definition of hearsay not only admissions and vicarious admissions but also so-called "adoptive admissions." Specifically, Rule 801(d)(2)(B) excludes from the definition of hearsay a statement that "is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth." (378) This exception is particularly useful for addressing statements in e-mail messages that recite comments of others, as well as chains of e-mail messages that reply to one another or forward earlier messages to others. In such circumstances, the proponent must satisfy the hearsay exception not only with respect to the penultimate communication but also with respect to any statements by others that are imbedded in, or appended to, that document. (379) Thus, for example, if each message within a chain of e-mail messages independently satisfies an exception to the hearsay definition or to the hearsay exclusion, then the entire chain of communications will be admissible. (380)
A wide variety of responsive--and non-responsive--reactions can constitute an adoption of another's statement for purposes of the rule. For example, the Advisory Committee note provides that this exception encompasses "acquiescing in the statement of another." (381) Furthermore, the Advisory Committee note provides that "any appropriate manner" of conduct may demonstrate adoption or acquiescence. (382) Thus, a party may adopt the statement of another by explicitly agreeing with that statement. (383) Where a party responds in an ambiguous fashion to another person's statement, the fact finder must determine whether the response indicates adoption or acquiescence. (384) Furthermore, a party can adopt the statement of another by a silent response to that statement. (385) With written statements such as letters, however, a silent response will not typically show adoption or acquiescence unless the parties have a relationship where the recipient is expected to clarify any disagreement. (386) Accordingly, a reply to an e-mail message may adopt statements in the original message by expressly agreeing with them, by equivocally responding to them, or, depending upon the nature of the statements and the relationship of the parties, by not responding to them.
Not only can a party adopt the statement of another as an admission by response or non-response to that statement, but a party can also adopt the statement of another by using it or taking some action in response to it. (387) For example, when a university implemented a committee's recommendations under the university's grievance procedures, the committee report was held to be an adoptive admission of the university. (388) The First Circuit explained that such a statement may be an adoptive admission "to the extent that the adoptive party accepted and acted upon the evidence." (389) Similarly, where a city manager sought an employee's resignation based upon certain conclusions in a report and in attached notes of witness interviews, these documents were held to be adoptive admissions of the city's because the city manager had accepted them and acted on them. (390) In reaching this result, the Tenth Circuit held that, although the city manager may not have believed every statement in these documents to be true in order to conclude that the employee should resign, that fact would go to the weight of the evidence and not towards admissibility. (391) Furthermore, it has been held that statements in certain articles were an admission of a party opponent by virtue of the article having been published in the party's journals. (392)
This reasoning has been extended to an instance in which a party forwarded an e-mail message sent to that party. Specifically, in Sea-Land Service, Inc. v. Lozen International, LLC, (393) a shipper sued a customer to recover unpaid amounts on a contract to ship grapes, and the customer counterclaimed for damages suffered from the untimely delivery of the grapes. The shipper's railroad agent placed the containers of grapes on the wrong train, thereby delaying their arrival. At issue in Sea-Land was whether this delay constituted an unreasonable deviation that would release the customer from the bill of lading's terms. The customer conceded that the initial misrouting of the containers was an accident that did not constitute an unreasonable deviation; however, the customer argued that the behavior of the shipper's railroad agent after discovering the error was an unreasonable deviation. The basis of this argument was an internal e-mail message from one of the shipper's employees to another, which was forwarded to the customer. The forwarded e-mail message stated that the railroad agent exacerbated delay from placing the grapes on the wrong train by refusing the shipper's instruction to place the misdirected grapes on trucks. (394) Yet, this message was excluded by the district court as not constituting an admission by the shipper because insufficient evidence was provided as to the identity or job title of the employee who authored the forwarded e-mail message. (395) On appeal, however, the Ninth Circuit held that, even if the original e-mail message did not relate to a matter within the scope of the author's employment, the employee who received the e-mail message adopted it as an admission by forwarding it to the customer and adding the statement: "Yikes, Pis [sic] note the rail screwed us up...." (396) Most commercial litigators will find this type of communication to be all too familiar.
VI. RELEVANCE AND PREJUDICE
Because authors of e-mail messages often use an informal style and often send such messages impulsively without careful and deliberate thought or review, the content of e-mail messages is often sensational. Inevitably, the sensational nature of such content will prompt objections that messages should be excluded as irrelevant or unduly prejudicial. This section will first explore how the general concepts of relevance and unfair prejudice apply to e-mail messages and then explore specialized applications of these concepts when applied to so-called "prior bad acts."
A. General Rules Regarding Relevance and Unfair Prejudice
If an item of evidence is not relevant, the item will not be admissible. (397) The relevance standard is broadly defined to admit "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (398) As stated by the Advisory Committee note, the proponent of an item of evidence must demonstrate an affirmative answer to the question: "Does the item of evidence tend to prove the matter sought to be proved?" (399) The Advisory Committee also explained that the answer to this question lies not in any "inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." (400) Thus, the relevance of an e-mail message turns not on the nature of e-mail, but on the relationship between a particular e-mail message and the matters at issue in a particular case.
Certain evidence, although relevant, is nonetheless excluded where it is unfairly prejudicial. Specifically, Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (401) Merely because evidence is harmful to a party does not mean that it is unfairly prejudicial within the meaning of Rule 403's exclusion. Evidence will not be deemed unfairly prejudicial where it is "prejudicial only in the sense that proof of the [proponent's] case [i]s prejudicial to the [opponent]." (402) As explained by the Advisory Committee note, "unfair prejudice ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." (403)
Given the notorious tendency of e-mail to inspire communications that are inappropriate and ill-conceived, one can expect evidentiary battles over whether e-mail messages should be excluded under Rule 403 as tending to suggest decision on an emotional basis. However, Rule 403 does not preclude all emotional evidence but only evidence whose emotional appeal is deemed "illegitimate." (404) Evidence that is horrific or emotionally charged in nature will be admissible if justified by its probative value. (405) This point is, perhaps, best illustrated by the trial of Timothy McVeigh for the infamous Oklahoma City bombing. McVeigh challenged the testimony of witnesses about the immediate impacts of the bombing on the witnesses, including terrible injuries suffered by witnesses and such traumatic experiences as watching parents search for, and find, their dead children. Although the Tenth Circuit described this evidence as "emotionally powerful," the court held that such "graphic depictions" are relevant and properly admissible. (406) Furthermore, the court held that the government had no obligation to present the evidence in a manner calculated to minimize its emotional impact on the jury because "Rule 403 is designed to insure only that the prejudicial effects of emotional testimony do not overwhelm the jury." (407)
Accordingly, attempts to exclude e-mail messages pertaining to the subject matter of the case based on relevance and prejudice--although inevitable--face an uphill battle. One much publicized example is the case of Strauss v. Microsoft Corp., (408) where Microsoft's employee brought a sexual discrimination claim against Microsoft. In Strauss, Microsoft moved in limine to exclude certain graphic and inappropriate e-mail messages authored by one of its employees. For example, one message referred to a female employee as the "Spandex Queen." Another included a parody of a play entitled "A Girl's Guide to Condoms." (409) In response to Microsoft's argument that the messages were irrelevant, the court held that the messages, when viewed in light of other evidence of pretext, "could lead a reasonable jury to conclude that Microsoft's proffered reason for failing to promote Strauss is not the true reason for its actions." (410) "Accordingly, while [the employee's] remarks and e-mail messages do not inevitably prove that gender played a part in his employment decisions, such evidence is certainly relevant under Rule 401." (411) In Strauss, Microsoft also argued that the messages were unfairly prejudicial because they were mere attempts at humor and were not directly connected to promotion and termination decisions. The court rejected this argument. Specifically, the court held that the evidence was probative, even though the statements did not relate directly to the promotion and termination decisions, and that any embarrassing or offensive quality of the messages was directly associated with their probative value. (412)
Although many challenges to e-mail messages based on relevance and prejudice will be doomed, some will inevitably succeed. For instance, in a case where an employee of a non-party to the litigation authored e-mail messages with derogatory remarks about one of the parties, the Ninth Circuit upheld the exclusion of the messages on the ground that they were unduly prejudicial. Specifically, in Monotype Corp. v. International Typeface Corp., (413) International Typeface Corporation ("ITC"), a typeface licensor, had accused Monotype Corporation ("Monotype"), a typeface creator, of wrongfully cloning ITC typefaces in developing certain typefaces that Monotype attempted to license to Microsoft Corporation ("Microsoft"). Monotype argued that the typefaces in question were created independently from Monotype archives. Monotype brought a claim for declaratory relief seeking a declaration that Monotype did not breach its contract with ITC, which required that any typefaces licensed from ITC be reproduced without modification and that no version of any such typeface be offered for sale other than under the terms of that contract. Monotype also sought to enjoin ITC from communicating with Mototype's customers and potential customers that Mototype's typefaces were ITC typefaces or versions of ITC typefaces.
At issue in the Ninth Circuit's decision were e-mail communications by non-parties to the litigation. One such communication was a single-page document prepared by David Berlow, a principal of a company specializing in design and production of digital typefaces for computer formats. Berlow was retained by Microsoft to assist in converting Monotype typefaces into computer format. Berlow communicated by e-mail to a Microsoft employee that Berlow had "finally determined for certain that some of the faces that we are being asked to work on, are not legitimate versions." (414) "Berlow then expressed his opinion that Monotype had copied the ITC typefaces." (415) The Ninth Circuit held that the district court had properly excluded Berlow's statements under Rule 403. Specifically, the court held that Berlow's opinions had insufficient support because they were not based on an actual comparison between the typefaces in question, but were based on an industry moral code that was not part of the parties' agreement. (416)
A second e-mail message at issue in the Ninth Circuit's Monotype decision was an e-mail message by Dennis Adler, a Microsoft employee, which was sent to other Microsoft employees after Adler received Berlow's e-mail message. In Adler's e-mail message, he urged Microsoft to proceed with caution in dealing with Monotype and described Monotype's type director in "a highly derogatory and offensive" manner. (417) Given the offensive and derogatory nature of Adler's remarks, the Ninth Circuit upheld the district court's ruling excluding the e-mail message as unfairly prejudicial under Rule 403. (418)
B. Special Applications Involving Prior Bad Acts
Just as carelessly drafted e-mail messages are likely to be fertile ground for arguments about unfair prejudice, when such messages involve acts tangentially related or unrelated to those at issue in the litigation, this evidence will inevitably lead to arguments over whether it should be excluded as character evidence or as impermissible evidence of prior bad acts. Rule 404(a) generally prohibits a party from offering "[e]vidence of a person's character or trait of character ... for the purpose of proving action in conformity therewith." (419) Rule 404(b) generally excludes evidence of prior bad acts when offered to show that a person acted consistently with what such acts tend to reveal about a person's character: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." (420)
Where the person who is the subject of character evidence is a witness, the rules are somewhat different. Specifically, Rule 404(a) provides that character evidence shall be used as provided in Rules 607, 608, and 609. (421) Rule 607 provides for impeaching the credibility of a witness. (422) Rule 609 governs impeachment with evidence of a criminal conviction. (423) Otherwise the use of character evidence and evidence of other acts of a witness is governed by Rule 608. Rule 608(a) provides for the limited use of evidence of a witness's character for truthfulness or untruthfulness--limited to the form of testimony in the form of opinion or about reputation. (424) Rule 608(b) grants the court discretion to allow a party to inquire on cross examination into specific instances of a witness's conduct, if probative of the witness's truthfulness or untruthfulness, but prohibits the use of extrinsic evidence of such other acts for the purpose of attacking or supporting the witness's credibility. (425)
Notwithstanding these general prohibitions, there are a number of instances where evidence of so-called prior bad acts is admissible. First, with regard to persons generally, Rule 404(b)'s prohibition on offering evidence of prior bad acts is subject to an exception that allows such evidence to be introduced "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (426) Second, with regard to witnesses in particular, Rule 608(b)'s prohibition on offering extrinsic evidence of specific instances of a witness's conduct applies only when the purpose is to attack or support the witness's credibility. (427) When the evidence is offered for a different purpose, such as in proving Rule 404(b) matters such as motive or intent, or proving bias instead of character, then Rule 608(b)'s prohibition on introducing such evidence simply does not apply. (428)
Although different jurisdictions have adopted tests for admissibility under Rule 404(b) that have differing nuances, determining admissibility of other acts as evidence generally involves three steps. First, the court must determine whether the evidence sought to be introduced is evidence of an act "other" than the act at issue in the litigation or, instead, is intrinsically bound up in the act at issue. (429) Second, if the evidence is an act "other" than the act at issue, the court must determine whether the evidence of that other act is relevant to an issue other than character, such as those issues enumerated in Rule 404(b). (430) Third, the court must apply the balancing test required by Rule 403 and determine whether the probative value of this evidence of a different act is substantially outweighed by any unfair prejudice that would flow from the introduction of such evidence. (431)
To date, there have been a small number of reported decisions involving e-mail as evidence of other acts in the criminal context. These decisions show how e-mail messages unrelated to the act at issue can be used to prove motive, intent, knowledge, and identity. For instance, in United States v. Hall, (432) the defendant was charged with two counts of knowingly receiving child pornography by computer. The defendant claimed to have received the materials at issue unsolicited. Several sexually explicit e-mails by the defendant were held to be admissible to demonstrate that the defendant intended to receive child pornography and knew he would receive it. These e-mail messages were probative of the defendant's intent and knowledge because they all involved consistent communication with the same e-mail address, included sexually explicit materials involving minors, and indicated attempts to solicit sexual pictures of minors. (433) Similarly, in State v. Turner, (434) where the defendant was convicted of violating a protective order by contacting his son by e-mail on a particular date, several prior e-mail messages from the defendant to his son were held admissible to show the defendant's identity as author of the e-mail at issue, as well as the defendant's intent to violate the protective order. (435) In the same vein, in United States v. Sullivan, (436) a computer programmer was charged with inserting a "logic bomb" into software code in order to disable his employer's hand-held computers. The court held admissible a web page discussing computer crimes and the defendant's dissatisfaction with his employer, as well as an e-mail from the defendant's friend, which was posted on this website. Because the defendant claimed that he planted this code only as a benign test and without intending to cause problems, the web page and e-mail were held to be relevant in establishing that the defendant did intend to cause damage. (437) Finally, in Allen v. Oklahoma, (438) where the defendant was convicted of murdering his wife, e-mail messages between the defendant and his secretary discussing intimate sexual problems in the defendant's marriage were held admissible to show motive.
Although the rules governing prior bad acts are commonly associated with criminal cases, and, indeed, Rule 404(b)'s exception provides for advance notice of the prosecution's intent to introduce such evidence in criminal cases, (439) Rule 404(b) also applies to civil cases. (440) Indeed, many courts have concluded that Rule 404(b) applies to evidence of other acts by third parties. (441) Accordingly, Rule 404(b) is a potential vehicle for introducing e-mail messages in commercial litigation, particularly in cases where motive or intent are at issue. (442)
In addition, an employment law case involving a state analogue to Rule 608(b) shows how e-mail is likely to give rise to questions of admissibility of specific instances of a witness's conduct. Specifically, in Hudson v. Wesley College, (443) the Delaware Chancery Court ruled on the admissibility of an e-mail message where the plaintiff claimed that he was wrongfully denied tenure. Specifically, the plaintiff claimed that an individual defendant had made misrepresentations to the defendant college's board concerning financial resources and the future of subject matters taught by the plaintiff. The court held that the plaintiff could admit into evidence an e-mail message authored by the individual defendant where the defendant referred to an advertisement that the college had made for a tenure track teaching position in the college's English department. The e-mail message further discussed the college's needs in that department and expressed concern that the plaintiff might apply for the position. Although the defendants objected based on Delaware's analogue to Rule 608(b), the court held that the individual defendant's intent and purpose behind the wording of the e-mail and his reason for sending it may shed light on any personal bias he had towards the plaintiff. Accordingly, the e-mail message was not offered as a prior bad act to prove a trait for committing similar bad acts. (444)
As the presence of e-mail is becoming pervasive in the commercial world, it is clear that the purposes for which it can be used and the individual styles with which people use it are more varied than any other form of documentary evidence. E-mail messages pick up a vast range of content and styles from highly formal and controlled business communications to casual commentary that is comparable to handwritten notes to banter that could only be compared to casual oral communications. In the case of threaded communications, the medium records in documentary form something of a hybrid between letters and oral communications. Furthermore, while any form of document is subject to error or fabrication, the electronic nature of e-mail messages may make e-mail more susceptible to such risks. Thus, it is not surprising that e-mail presents numerous evidentiary issues. Nevertheless, whether the question is one of reliability, determining the effect of responsive or forwarded communications, or evaluating the content and style of communication, courts have generally found the existing framework of the evidentiary rules sufficiently flexible to meet the demands of this burgeoning form of evidence. Indeed, the widely varied nature of e-mail communications may make this flexible, media-neutral approach ideally suited to this new medium. Accordingly, the solution to most evidentiary problems involving e-mail will turn on context and content rather than reasons for establishing unique exceptions to established evidentiary rules.
(1.) ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997).
(2.) Id. at 832.
(3.) See Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 872 (9th Cir. 1999); Panavision Int'l L.P. v. Toeppen, 945 F. Supp. 1296, 1299 (C.D. Cal. 1996).
(4.) See JULIAN S. MILLSTEIN, ET AL., DOING BUSINESS ON THE INTERNET: FORMS AND ANALYSIS [section] 1.05, at 1-13 (Rel. 6 2001).
(5.) See ACLU, 929 F. Supp. at 834.
(6.) Tony Kontzer, More Than an In-Box, E-Mail is Moving to a Broader Business Purpose, INFORMATIONWEEK, May 6, 2002, at 51.
(7.) See RON WHITE, HOW COMPUTERS WORK 351 (1999).
(8.) See Anna Marie Kukec, Surveys Cite E-Mail as Catalyst to Change, DAILY HERALD, Mar. 5, 2001, at 1.
(9.) Teresa M. McAleavy, E-Mail Taking a Bite Out of Companies' Bottom Lines, THE RECORD, May 24, 2002, at B1.
(10.) Vivian Marino, Kill All the E-Mail?, N.Y. TIMES, Feb. 10, 2002, [section] 3, at 11.
(11.) Kontzer, supra note 6, at 51.
(12.) Tamara Loomis, Company E-Mail: Electronic Messages Can Become Damaging Evidence, N.Y.L.J., Feb. 8, 2001, at 5.
(13.) E-Business: E-Mails to the Boss That Can Get You Fired, BIRMINGHAM POST, June 11, 2002, at 20.
(14.) See Kevin Bell, E-Mail Failing as Company Productivity Booster, Study Finds, BLOOMBERG NEWS, June 25, 2002; see also Kontzer, supra note 6, at 51.
(15.) Business: CEOs Drowning in Sea of E-Mail, NAT'L J. TECH. DAILY, Jan. 4, 2002.
(16.) See Peter V. Lacouture, Discovery and the Use of Computer-Based Information in Litigation, R.I.B.J., Dec. 1996, at 9; Heidi L. McNeil & Robert M. Kort, Discovery of E-Mail: Electronic Mail and Other Computer Information Shouldn't Be Overlooked, 56 OR. ST. BUS. BULL. 21, 21-22 (1995); James J. Marcellino & Anthony A. Bongiorno, E-Mail is the Hottest Topic in Discovery Disputes, NAT'L L.J., Nov. 3, 1997, at B10; Martha Middleton, A Discovery: There May Be Gold in E-Mail, NAT'L L.J., Sept. 20, 1993, at 1; James H.A. Pooley & David M. Shaw, Finding Out What's There: Technical and Legal Aspects of Discovery, 4 TEX. INTELL. PROP. L.J. 57, 63 (1995); Mark D. Robins, Computers and the Discovery of Evidence--A New Dimension to Civil Procedure, 17 J. MARSHALL J. COMPUTER & INFO. L. 411, 415 (1999) [hereinafter Robins, Computers and the Discovery of Evidence].
(17.) See 29% of Professionals Busted for Inappropriate E-Mails; New Vault Study Reveals E-Mail's Increasing Impact in the Workplace, BUSINESS WIRE, Aug. 22, 2001.
(18.) See Jo Willey, E-Mail Causing Business Friction--Survey, PRESS ASS'N, May 11, 2001.
(19.) See Robins, Computers and the Discovery of Evidence, supra note 16, at 450-51; see also Richard L. Marcus, Confronting the Future: Coping With Discovery of Electronic Material, 64 J. L. & CONTEMP. PROBS. 253, 265 (2001) (likening casual communications recorded in e-mail to "water cooler banter").
(20.) See Alan Brill, The Secret Life of Computer Data: How Valuable Evidence is Ignored by Litigators, METROPOLITAN CORP. COUNSL., Mar. 1994, at 32; Patrick R. Grady, Comment, Discovery of Computer Stored Documents and Computer Based Litigation Support Systems: Why Give up More than Necessary, 14 J. MARSHALL J. COMPUTER & INFO. L. 523, 531-43 (1996); Andrew Johnson-Laird, Smoking Guns and Spinning Disks, COMPUTER LAW., Aug. 1994, at 1, 5-8; Robins, Computers and the Discovery of Evidence, supra note 16, at 416-17; Joel B. Rothman, Is it Really Gone? Data Recovery and Computer Discovery, LEGAL TECH NEWSL., Jan. 1998, at 1, 8.
(21.) See Susan E. Davis, Elementary Discovery, My Dear Watson: Today's Evidence Comes in Bytes and Megabytes, 16 CAL. LAW. 53, 53 (1996); John J. Dunbar, When Documents are Electronic: Discovery of Computer-Generated Materials, WASH. ST. BUS. NEWS, Apr. 1997, at 33, 34; Johnson-Laird, supra note 20, at 5; Lacouture, supra note 16, at 9; McNeil & Kort, supra note 16, at 22; Pooley & Shaw, supra note 16, at 64; Robins, Computers and the Discovery of Evidence, supra note 16, at 417; Rothman, supra note 20, at 7.
(22.) See Alan Brill, A Lawyer's Place in Cyberspace, AM. LAW. TECH. SUPP., Dec. 1995, at 10; Johnson-Laird, supra note 20, at 5-6; Robins, Computers and the Discovery of Evidence, supra note 16, at 417.
(23.) See Samuel A. Thumma & Darrel S. Jackson, The History of Electronic Mail in Litigation, 16 SANTA CLARA COMPUTER & HIGH TECH. L.J. 1, 7-9 (1999).
(24.) See id. at 13-31.
(25.) FED. R. EVID. 901(a).
(26.) See 5 JOSEPH M. MCLAUGHLIN ET AL., WEINSTEIN'S FEDERAL EVIDENCE [section] 901.02, 901-14 to 901-15 (2d ed. 2001); 31 CHARLES A. WRIGHT & VICTOR J. GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE, [section] 7104, at 27-28 (2000).
(27.) FED. R. EVID. 104(b).
(28.) See 31 WRIGHT & GOLD, supra note 26, [section] 7104, at 34-36.
(29.) FED. R. EVID. 104(b) advisory committee's note (1972).
(30.) 5 MCLAUGHLIN, supra note 26, [section] 901.02, at 901-16 to 901-17.
(31.) FED. R. EVID. 901(b); see 31 WRIGHT & GOLD, supra note 26, [section] 7105, at 38-39 (discussing importance of non-exclusive nature of Rule 901(b)'s examples in light of fact that examples were created before new forms of evidence not envisioned by drafters).
(32.) FED. R. EVID. 901(b)(1).
(33.) See, e.g., United States v. Devous, 764 F.2d 1349, 1355 (10th Cir. 1985) ("The testimony of either the stenographer (transcriber) or a participant in the actual conversation that the transcript is correct is sufficient to authenticate.") (citation omitted).
(34.) See 2 JOHN W. STRONG, ET AL., MCCORMICK ON EVIDENCE [section] 219(a), 687-88 (5th ed. 1989); see also FED. R. EVID. 901(b) advisory committee's note (noting that the example in Rule 901(b)(1) "contemplates," among other possibilities, "testimony from a witness who was present at the signing of a document").
(35.) See Richard Howard, Inc. v. Hogg, Case No. 12-96-5, 1996 Ohio App. LEXIS 5533, at *7-*8 (Ohio Ct. App. Nov. 19, 1996).
(36.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 42.
(37.) FED. R. EVID. 901(b)(4).
(38.) FED. R. EVID. 901(b) advisory committee's note (1972).
(39.) FED. R. EVID. 901(b) advisory committee's note (1972). One commentator has argued that the reply letter doctrine applies to e-mail messages. See 3 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE [section] 901.4, at 678 (5th ed. 2002). However, some courts have refused to apply the reply letter doctrine in the context of replies to communications such as telegrams that are circulated among multiple people, any one of whom could have authored the reply in question. See 31 WRIGHT & GOLD, supra note 26, [section] 7109, at 84 n.33. Although e-mail messages may be transmitted to groups, any such concern will be diminished where the reply indicates a return address that can be identified. Furthermore, applying the reply letter doctrine to e-mail may be bolstered by analogous or direct application of two other methods of authentication made available by Rule 901(b). First, Rule 901 includes within its non-exclusive examples of how to authenticate evidence the following illustration for authenticating a telephone conversation: to admit the telephone conversation into evidence, the proponent may introduce "evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business" together with circumstances identifying the recipient of the call. FED. R. EVID. 901(b)(6). In the case of an individual recipient, these circumstances include self-identification by the recipient of the call. Id. In the case of a corporate recipient, the identifying circumstances are that "the call was made to a place of business and the conversation related to business reasonably transacted over the telephone." Id. In a wide variety of contexts, courts have likened Internet communications to telephone conversations. See Jessica Clair Cobaugh, Note, Bloom v. Commonwealth: Identifying the Face Behind the Instant Message, 8 RICH. J.L. & TECH. 17, [paragraph] 5 n. 13 (2002) at http://www.law.richmond.edu/jolt/v8i3/article17.html (last visited June 5, 2003) (on file with the Rutgers Computer & Technology Law Journal). But see Bloom v. Commonwealth, 554 S.E.2d 84, 88 n.2 (Va. 2001) (rejecting analogy between instant messaging and telephone conversations based on lack of opportunity for voice recognition). Second, with respect to the process by which the forwarding and reply functions operate, Rule 901(b)(9) provides for authentication of a process or system through "[e]vidence describing a process or system used to produce a result and [a] showing that the process or system produces an accurate result." FED. R. EVID. 901(b)(9).
(40.) FED. R. EVID. 901 (b) advisory committee's note (citations omitted).
(41.) See Andrew Jablon, Note, "God Mail": Authentication and Admissibility of Electronic Mail in Federal Courts, 34 AM. CRIM. L. REV. 1387, 1402 (1997).
(42.) See 31 WRIGHT & GOLD, supra note 26, [section] 7109, at 76-86.
(43.) 33 F.3d 1396 (3d Cir. 1994).
(44.) Id. at 1402.
(45.) Id. at 1405-08.
(46.) 235 F.3d 1318 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001).
(47.) See id. at 1320.
(48.) Id. at 1320-22.
(49.) Id. at 1322-23.
(50.) 152 F.3d 1241 (10th Cir. 1998).
(51.) Id. at 1249-50; see also United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (holding that logs of chat room sessions maintained by witness who deleted certain materials was properly authenticated where there was independent evidence linking defendant to one of screen names used in chat sessions and where witness "explained how he created the logs with his computer and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations").
(52.) See generally Robins, Computers and the Discovery of Evidence, supra note 16, at 421-25, 452-53, 485-87; Mark D. Robins, Computers and the Spoliation of Evidence, MASS. LAW. WKLY., Apr. 19, 1999, at B5.
(53.) See generally Jablon, supra note 41.
(54.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-24; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 47-48.
(55.) See, e.g., United States v. Douglas, 964 F.2d 738, 742 (8th Cir. 1992); see generally 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-29; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 46-47.
(56.) See, e.g., United States v. Cabral, 430 U.S. 902 (1977); United States v. Scully, 546 F.2d 255, 269 (9th Cir. 1976). See generally 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-29 to 901-30; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 47-48, [section] 7110, at 103-04.
(57.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-24 to 901-28; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 49-55.
(58.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-27; 31 WRIGHT & GOLD, supra note 26, [section] 7106, at 50-51.
(59.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-30.
(60.) See Robins, Computers and the Discovery of Evidence, supra note 16, at 414-18, 438-43, 452-53; Mark D. Robins, Discovery in the Digital Age, in II 2000 BENCH & BAR CONF. 757, 762 (State Bar of Wis. 2000).
(61.) See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 529-34 (1st Cir. 1996); Strasser v. Yalamanchi, 669 So. 2d 1142, 1143-45 (Fla. Dist. Ct. App. 1996). Nevertheless, courts are increasingly allowing discovery into such areas, subject to protection from cost and from the risk of exposing privileged or confidential information. See, e.g., Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 650-54 (D. Minn. 2002); Rowe Enters., Inc. v. William Morris Agency, Inc. 205 F.R.D. 421, 428-33 (S.D.N.Y. 2002); McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); Simon Property Group, L.P. v. mySimon Inc., 194 F.R.D. 639, 640-44 (S.D. Ind. 2000); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1052-54 (S.D. Cal. 1999); Alexander v. F.B.I., 188 F.R.D. 111, 116-17 (D.D.C. 1998). See generally Mark D. Robins, The Use of Prejudgment Remedies and Expedited Procedures to Obtain Electronic Discovery, in ELECTRONIC DISCOVERY AND COMPUTER FORENSICS (Mass. Continuing Legal Educ. 2003) (forthcoming).
(62.) See Lexis-Nexis v. Beer, 41 F. Supp. 2d 950, 953 (D. Minn. 1999); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 110, 112-13, 120 (D. Colo. 1996).
(63.) 127 F.3d 595 (7th Cir. 1997).
(64.) Id. at 601.
(65.) Id. at 602.
(66.) 208 F.3d 633 (7th Cir. 2000).
(67.) Id. at 634-36.
(68.) Id. at 635.
(69.) Id. at 637-38.
(70.) Id. at 638.
(71.) Id. The Jackson decision may also be based, in part, on judicial skepticism about the trustworthiness of website postings. Websites are accessible by numerous computer users from remote locations and are vulnerable to manipulation. See 5 MCLAUGHLIN, supra note 26, [section] 901.08, at 901-81 to 901-82. As one court undoubtedly overstated in a drastic holding that data purportedly obtained from a government website was presumptively untrustworthy and could not be authenticated: "Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999) (emphasis in original). Although, like any computerized evidence, e-mail is similarly vulnerable to manipulation, e-mail is typically not accessible to the public and manipulation by the holder of an e-mail account is often relatively easy to detect. See 5 MCLAUGHLIN, supra note 26, [section] 901.08, at 901-83.
(72.) See 5 MCLAUGHLIN, supra note 26, [section] 901.03, at 901-22.
(73.) United States v. Coohey, 11 F.3d 97, 99-100 (8th Cir. 1993).
(74.) See generally William Decoste, Sender Beware: The Discoverability and Admissibility of E-Mail, 2 VAND. J. ENT. L. & PRAC. 79 (2000). But see St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) (questioning reliability of website evidence). The review presented within this Article similarly leads to the conclusion that the existing framework of the rules of evidence has been adequate to the task of addressing questions presented by e-mail.
(75.) See Jablon, supra note 41, at 1403.
(76.) See, e.g., People v. Lee, No. A078429, 1999 WL 595455 (Cal. Ct. App. July 27, 1999) (upholding defendant's conviction for forging e-mails to be used as evidence in civil litigation where defendant was seen removing stacks of e-mails from her employer's premises after being terminated, where victim of forgeries was determined from cellular telephone records to have been in his car using cell phone at time messages were sent from his account, and where defendant had called in to coworker with request to check for e-mail messages printed from victim's terminal at time that messages were sent).
(77.) Cf. Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence and the Need for Institutional Reform and More Judicial Acceptance, 13 HARV. J. L. & TECH. 161, 227-28 (2000) (arguing that standard for authenticating computer generated evidence is lower when such evidence merely depicts something entirely within the witness' personal knowledge and higher when such evidence consists of re-creations or simulations that are based on mathematical models and cannot be verified from the witness's own personal knowledge).
(78.) FED. R. EVID. 902.
(79.) FED. R. EVID. 902(7).
(80.) See Gregory P. Joseph, Internet and Email Evidence, COMPUTER & INTERNET L., April 2002, at 17, 20-21; 5 MCLAUGHLIN, supra note 26, [section] 901.08, at 901-83 to 901-84.
(81.) See FED. R. EVID. 902(7) advisory committee's note (1972); 5 MCLAUGHLIN, supra note 26, [section] 902.09, at 902-31; 31 WRIGHT & GOLD, supra note 26, [section] 7141, at 247.
(82.) See, e.g., America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 449-50 (E.D. Va. 1998); America Online, Inc. v. IMS, 24 F. Supp. 2d 548, 551-52 (E.D. Va. 1998); Hotmail Corp. v. Van Money Pie, Inc. 47 U.S.P.Q.2d (BNA) 1020 (N.D. Cal. 1998); Compuserve, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015, 1019-20 (S.D. Ohio 1997); see generally Mark D. Robins, A Guide to Internet-Based Trademark and Unfair Competition Decisions (Part I), J. INTERNET L., Feb. 1999, at 11, 17.
(83.) See 15 U.S.C. [section] 1125(d).
(84.) See Mark D. Robins, Electronic Trespass: An Old Theory in a New Context, COMPUTER LAW., Jul. 1998, at 1, 4.
(85.) See, e.g., ARK. CODE ANN. [section] 5-41-205; COLO. REV. STAT. ANN. [section] 6-2.5-103; DEL. CODE ANN. [section] 937; 720 ILL. COMP. STAT. ANN. [section] 5/16D-3; 815 ILL. COMP. STAT. ANN. [section] 511/10; LA. REV. STAT. ANN. [section] 73.6; NEV. REV. STAT. ANN. [section] 205.492; N.C. GEN. STAT. ANN. [section] 14-458; OKLA. STAT. ANN. tit. 15, [section] 776.1; S.D. CODIFIED LAWS [section] 37-24-37; TENN. CODE ANN. [section] 47-18-2501; VA. CODE ANN. [section] 18.2-152.4; WASH. REV. CODE ANN. [section] 19.190.020; WASH. REV. CODE ANN. [section] 19.190.030; W. VA. CODE ANN. [section] 46A-6G-2.
(86.) See 5 MCLAUGHLIN, supra note 26, [section] 901.08, at 901-83 to 901-84.
(87.) See 31 WRIGHT & GOLD, supra note 26, [section] 7141, at 248.
(88.) See Superhighway Consulting, Inc. v. Techwave, Inc., No. 98CV5502, 1999 U.S. Dist. LEXIS 17910, at *6 (N.D. Ill. Nov. 16, 1999).
(89.) Id. at *6-*7.
(90.) See People v. Von Gunten, No. C035261, 2002 Cal. App. Unpub. LEXIS 2361, at *12-*20 (Cal. Ct. App. Apr. 4, 2002) (unpublished opinion).
(91.) See id.
(92.) This appears to be the argument in 5 MCLAUGHLIN, supra note 26, [section] 901.08, at 901-83 to 901-84.
(93.) See generally Mark D. Robins, The Rights of Privacy and Publicity Under Massachusetts Law, 86 MASS. L. REV. 131 (2002) [hereinafter Robins, The Rights of Privacy and Publicity].
(94.) Cf. Total Containment, Inc. v. Environ Prods. Inc., 921 F. Supp. 1355, 1370 (E.D. Pa. 1995) (holding "fax burn-in" on document was insufficient guarantee of trustworthiness to satisfy catch-all exception for hearsay rule).
(95.) Whitted v. General Motors Corp., 58 F.3d 1200, 1204 (7th Cir. 1995).
(96.) See 31 WRIGHT & GOLD, supra note 26, [section] 7141, at 249-50.
(97.) See 7 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW [section] 2130, at 710 (James H. Chadbourn rev. 1978).
(98.) FED. R. EVID. 1002.
(99.) FED. R. EVID. 1001 (1).
(100). FED. R. EVID. 1001(3). The definition, however, provides that "[a]n 'original' of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it." Id. Accordingly, it has been held that "a computerized record may be admitted into evidence as an 'original' only after the court has made a fact-specific determination as to the intent of the drafters and the accuracy of the documents." In re Gulph Woods Corp., 82 B.R. 373, 377 (Bankr. E.D. Pa. 1988). But see Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App. 2002) (holding that a copy of an instant message conversation that was captured from instant messaging program and pasted into word processing program for printing constituted "original" within meaning of similar state rule of evidence, despite arguments that use of "cut and paste" procedure "allowed for editing and tampering").
(101.) FED. R. EVID. 1001 (4).
(102.) FED. R. EVID. 1003.
(103.) See 6 MCLAUGHLIN, supra note 26, [section] 1001.08, at 1001-29.
(104.) See C.B. Mills v. Hawranik, No. 91C5797, 1994 U.S. Dist. LEXIS 3839, at *55 (N.D. Ill. Mar. 29, 1994).
(105.) See id. at *55 n.17.
(106.) Cf. 6 MCLAUGHLIN, supra note 26, [section] 1002.03, at 1002-7 (discussing litigants' disincentive to produce fraudulent copies of documents because opponents "can compel production of the original for comparison").
(107.) See, e.g., Laughner, 769 N.E.2d at 1159 (invoking similar state definition of "original" to allow proponent to admit a copy of an instant message conversation that was captured from an instant messaging program and pasted into a word processing program for printing, despite arguments that use of "cut and paste" procedure "allowed for editing and tampering"); see also 6 MCLAUGHLIN, supra note 26, [section] 1001.11, at 1001-50 (arguing that question of whether computerized documents have been fabricated generally should be left for jury to determine rather than precluding admissibility); id. [section] 1003.02, at 1003-6 (noting that courts "routinely" allow duplicates to be admitted even when accuracy is contested unless opponent can offer "persuasive" evidence of fabrication or error).
(108.) FED. R. EVID. 1004(1).
(109.) See, e.g. In re French, Civil Action No. 98-0681-S, 1999 U.S. Dist. LEXIS 16933, at *4, *8-*11 (S.D. Ala. Oct. 1, 1999) (witness' recollection of a computerized record); People v. Huehn, 53 P.3d 733, 738 (Colo. Ct. App. 2002) (photocopy of portions of computer tape); State v. Williamson, 836 S.W.2d 490, 498-99 (Mo. Ct. App. 1992) (notes of interpretation of computer printout).
(110.) State v. Ward, 510 N.W.2d 320, 324-25 (Neb. Ct. App. 1993); see also 6 MCLAUGHLIN, supra note 26, [section] 1004.11, at 1004-15 (noting that showing of loss is typically based on evidence upon unsuccessful efforts to locate original).
(111.) See generally 6 MCLAUGHLIN, supra note 26, [subsection] 1004.12, 1004.13[a].
(112.) For discussions on the various resources for discovery of electronic evidence, see the sources cited at supra notes 20-22 and see generally, Robins, Computers and the Discovery of Evidence, supra note 16, at 414-21.
(113.) For a discussion of the burdens and costs presented by various types of electronic discovery, see Robins, Computers and the Discovery of Evidence, supra note 16, at 421-25, 448-85.
(114.) See, e.g., CAL. EVID. CODE [section] 1550 (Deering 2003); N.Y. C.P.L.R. 4539(b) (Consol. 2002).
(115.) Uniform Electronic Transactions Act, 7A U.L.A. pt. 1 [section] 13 (West 2002).
(116.) Id. cmt.
(117.) 15 U.S.C.A. [section] 7001(d)(1), (3), (e) (West Supp. 2002).
(118.) Id. [section] 7002(a).
(119.) Id. [section] 7001(d)(1).
(120.) FED. R. EVID. 802.
(121.) FED. R. EVID. 801(c).
(122.) See id.
(123.) FED. R. EVID. 801(a).
(124.) FED. R. EVID. 1001(1).
(125.) FED. R. EVID. 801(c).
(126.) FED. R. EVID. Art. VIII advisory committee's introductory note.
(127.) See 5 MCLAUGHLIN, supra note 26, [section] 801.11, at 801-11.
(128.) See 5 MCLAUGHLIN, supra note 26, [section] 801.10[c], at 801-09.
(129.) FED. R. EVID. 801(a).
(130.) FED. R. EVID. 801(a) advisory committee's note.
(132.) United States v. Singer, 687 F.2d 1135, 1147 (8th Cir. 1982); see also United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir. 1980) (utility bills found in search of house were admissible to show that defendant resided in house).
(133.) United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. Unit B 1981).
(134.) United States v. Cardascia, 951 F.2d 474, 486-87 (2d Cir. 1991).
(135.) United States v. Patrick, 959 F.2d 991, 999-1000 (D.C. Cir. 1992).
(136.) FED. R. EVID. 801(c) advisory committee's note.
(137.) See 5 MCLAUGHLIN, supra note 26, [section] 801.11, at 801-14.
(138.) See 15 U.S.C.A. [section] 7001 (West Supp. 2002); Uniform Electronic Transactions Act, 7A U.L.A. pt. 1, at 225 (West 2002).
(139.) See Shattuck v. Klotzbach, No. 01-1109A, 2001 Mass. Super. LEXIS 642, at *6-*7 (Mass. Super. Ct. Dec. 11, 2001).
(140.) See generally Robins, The Rights of Privacy and Publicity, supra note 93, at 143; Mark D. Robins, Publicity Rights in the Digital Media (Part II), COMPUTER & INTERNET LAW., Dec. 2000, at 29, 32-35.
(141.) See, e.g., United States v. Williams, 952 F.2d 1504, 1517-18 (6th Cir. 1991) (holding that allegedly extortionate statements were admissible in extortion trial not for truth of matters asserted but for fact that they were heard by victim and would have tended to induce fear); United States v. Conn, 769 F.2d 420, 422 (7th Cir. 1985) (holding that tape recordings of conversations between judge and FBI agents were admissible in racketeering trial over judicial corruption where recordings were offered to show relationship between judge and agents).
(142.) See, e.g., Sabra-Anne Kelin, Note, State Regulation of Unsolicited Commercial E-Mail, 16 BERKELEY TECH. L.J. 435 (2001) (reviewing legislation regulating unsolicited commercial e-mail).
(143.) 261 F.3d 512 (5th Cir. 2001)
(144.) Id. at 526-27.
(146.) See 5 MCLAUGHLIN, supra note 26, [section] 801.11[a], at 801-16 to 801-17.
(147.) See, e.g., Agency Rent-A-Car, Inc. v. Gateway Indus., Inc., No. 6109, 1980 Del. Ch. LEXIS 630, at *14 n.3 (Del. Ch. July 21, 1980) (holding that investigative reports commissioned by plaintiff after plaintiff's demand for inspection of stock records was not relevant to whether plaintiff had proper purpose in making demand); People v. Spencer, 343 N.W.2d 607, 612 (Mich. Ct. App. 1983) (holding letters written to individual at least one month before events at issue were not relevant to his state of mind); Liberto v. Worcester Mut. Ins. Co., 87 A.D.2d 477, 478, 452 N.Y.S.2d 74, 75-76 (2d Dep't 1982) (holding letters not admissible to show plaintiff's state of mind where no effort made to show effect of letters on plaintiff's state of mind at time of act in question); Humphreys v. State, 531 S.W.2d 127, 136 (Tenn. Ct. App. 1975) (holding letters inadmissible to show defendant's state of mind where he had no knowledge of contents prior to alleged act).
(148.) See, e.g., United States v. Johnson, 71 F.3d 539, 543 (6th Cir. 1995) (finding that where defendant was prosecuted for prescribing medication without legitimate medical purpose, witness was permitted to testify regarding incident in which witness overheard another doctor telling defendant that he must stop writing such prescriptions because such statements were offered to prove defendant's knowledge which was element of offense); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1385-86 (4th Cir. 1995) (holding that in action against drug manufacturer for negligent failure to warn of adverse reactions, prior reports to defendant of adverse reactions were admissible for limited purpose of providing notice to defendant).
(149.) CV 01-2595 LBG (SHx), 2002 U.S. Dist. LEXIS 7333 (C.D. Cal. Apr. 22, 2002).
(150.) Id. at *8, *46-*47 n.14.
(151.) See Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001) (holding statements misidentifying products admissible for non-hearsay purpose of showing declarants' belief as to the identity of products); International Kennel Club, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1990-91 (7th Cir. 1988) ("Because the unsolicited letters received by the plaintiff merely requested information about purchasing the defendants' stuffed toy dogs, the letters are competent factual evidence of confusion on the part of the authors, and were properly considered by the trial court as evidence of a likelihood of confusion."); Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1160 n.10 (5th Cir. 1982) (holding phone calls directed to wrong party admissible for non-hearsay purpose of showing that declarants' thought parties' businesses were same). But see Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1098 (8th Cir. 1996) ("[T]he vague evidence of misdirected phone calls and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross-examination of the caller or sender regarding the reason for the 'confusion.'") (citations omitted).
(152.) See 5 MCLAUGHLIN, supra note 26, [subsection] 801.11[b], 801.11[c], at 801-18 to 801-21.
(153.) 119 F.3d 1266 (7th Cir. 1997).
(154.) Id. at 1271.
(155.) 2001-1 Trade Cas. (CCH) [paragraph] 73,275 (S.D.N.Y. Mar. 12, 2001).
(156.) Id. at 90,411, 2001 U.S. Dist. LEXIS 2462, at *7.
(157.) Id. at 90,417, 2001 U.S. Dist. LEXIS 2462, at *33.
(158.) See 5 MCLAUGHLIN, supra note 26, [section] 801.11, at 801-21 to 801-22.
(159.) See United States v. McIntyre, 997 F.2d 687, 702-04 (10th Cir. 1993).
(160.) See 30B MICHAEL H. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE [section] 7006, at 70-75 (Interim Ed. 2000).
(161.) See id.
(162.) FED. R. EVID. 801(c) advisory committee's note.
(163.) United States v. Siddiqui, 235 F.3d 1318, 1323 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001).
(164.) See, e.g. United States v. Sorrentino, 72 F.3d 294, 298 (2d Cir. 1995).
(165.) FED. R. EVID. 106.
(166.) See 1 MCLAUGHLIN, supra note 26, [section] 106.02, at 106-5 to 106-6.
(167.) See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988) (discussing partial codification); see also 21 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE [section] 5072 (1977) (discussing differences between Rule 106 and doctrine of completeness).
(168.) See 1 MCLAUGHLIN, supra note 26, [section] 106.02, at 106-12.
(169.) See 1 MCLAUGHLIN, supra note 26, [section] 106.03, at 106-14 to 106-17.
(170.) See Beech Aircraft Corp., 488 U.S. at 173 n.18.
(171.) No. 01-123-P-DMC, 2002 U.S. Dist. LEXIS 4078 (D. Me. Mar. 13, 2002).
(172.) Id. at *19-*25.
(173.) Id. at *24 n.13.
(174.) Nevertheless, a threaded communication should not be simplistically viewed as a single, unitary whole. For instance, in the copyright context, where a defendant copies a protected work into a threaded communication and a court is required to assess the amount and substantiality of the protected expression copied for the purpose of determining whether the allegedly infringing work constitutes a fair use, the court may be reluctant to view the allegedly infringing work as the entire chain of threaded communications as opposed to the single communication containing the copied expression. See Mark D. Robins, Copyright, Transformative Fair Use and Innovations in Information Technology, J. INTERNET L., July 2001, at 9, 12-13; Mark D. Robins, Fair Use under the Copyright Act and the Internet, J. PROPRIETY. RTS., Sept. 1999, 17, 22.
(175.) See Christine Sgarlata Chung & David J. Byer, The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence, 4 B.U. J. SCI. & TECH. L. 5, [paragraph] 36 (1998); Joseph, supra note 80, at 21; see also Robert L. Paddock, Utilizing E-Mail as Business Records Under the Texas Rules of Evidence, 19 REV. LITIG. 61 (2000).
(176.) FED. R. EVID. 803(6).
(182.) FED. R. EVID. 803(6).
(184.) FED. R. EVID. 803(6) advisory committee's note.
(185.) See Chung & Byer, supra note 175, at [paragraphs] 36-38.
(186.) FED. R. EVID. 803(6).
(187.) See United States v. Ferber, 966 F. Supp. 90, 98 (D. Mass. 1997) (finding certain foundational elements of business records exception to be satisfied but others not satisfied).
(188.) See 5 MCLAUGHLIN, supra note 26, [section] 803.08[a], at 803-66.
(189.) See id.
(190.) Compare Willco Kuwait (Trad.) S.A.K. v. deSavary, 843 F.2d 618, 627-28 (1st Cir. 1988) (holding telex dated more than three months after events recorded was not sufficiently contemporaneous to qualify as business record), and Carrie Contractors, Inc. v. Blount Constr. Group of Blount, Inc., 968 F. Supp. 662, 666 (M.D. Ala. 1997) (holding accounting records prepared almost seventeen months after events in question were not sufficiently contemporaneous to qualify as business records), with Gulf South Mach., Inc. v. Kearney & Trecker Corp., 756 F.2d 377, 381 (5th Cir. 1985) (holding logbook satisfied contemporaneity requirement when entries where made immediately after events or within twenty-four hours), and Standard Oil Co. v. Moore, 251 F.2d 188, 223 (9th Cir. 1957) (holding ledger satisfied contemporaneity requirement where most entries were posted shortly after end of each month based upon cash register tapes despite occasional time lags of several months as there was no evidence to show that lag introduced inaccuracies or uncertainty as to reliability).
(191.) See 30B GRAHAM, supra note 160, [section] 7047, at 414 n.18.
(192.) See. e.g., United States v. Hutson, 821 F.2d 1015, 1020 (5th Cir. 1987) ("Each printout had a date that showed when it was printed. This date was, in at least one case, seven to eight months after the business transactions took place. However, each printout also showed the date that the recorded banking transaction took place. This is sufficient for the purposes of Rule 803(6).") (citation omitted); United States v. Russo, 480 F.2d 1228, 1240 (6th Cir. 1973) ("It would restrict the admissibility of computerized records too severely to hold that the computer product, as well as the input upon which it is based, must be produced at or within a reasonable time after each act or transaction to which it relates.").
(193.) See 5 MCLAUGHLIN, supra note 26, [section] 803.08, at 803-64.
(194.) See id. at 803-63.
(195.) See, e.g., Baxter Healthcare Corp. v. Healthdyne, Inc., 944 F.2d 1573, 1577 (11th Cir. 1991); Saks Int'l, Inc. v. M/V "Export Champion," 817 F.2d 1011, 1013 (2d Cir. 1987); United States v. Jones, 554 F.2d 251, 252 (5th Cir. 1977).
(196.) See United States v. McGrath, 613 F.2d 361, 368 (2d Cir. 1979); Buckle v. United States, 446 U.S. 967 (1980).
(197.) See 5 MCLAUGHLIN, supra note 26, [section] 803.11, at 803-72.1 to 803-73.
(198.) See 30B GRAHAM, supra note 160, [section] 7047, at 398.
(199.) No. 93C1331, 1994 WL 484633 (N.D. Ill. Sept. 2, 1994).
(200.) Id. at *6 n.4.
(201.) Id. at *6.
(202.) Id. Cf. Azran v. Potter, 1996 Mass. App. Div. 202, 203 (1996) (holding FDIC computerized record showing amounts owed on promissory notes was inadmissible where there was no evidence showing how figures were compiled or that information came from someone with business duty to report it to preparer).
(203.) FED. R. EVID. 803(6).
(204.) FED. R. EVID. 803(6) advisory committee's note.
(205.) United States v. Ferber, 966 F. Supp. 90, 98 (D. Mass. 1997).
(206.) FED. R. EVID. 803(6) advisory committee's note.
(207.) FED. R. EVID. 803(6).
(208.) FED. R. EVID. 803(6) advisory committee's note.
(209.) See Paddock, supra note 175, at 61.
(210.) 966 F. Supp. 90, 98-99 (D. Mass. 1997).
(211.) Id. at 98 (citation omitted).
(212.) Id. at 99.
(213.) 43 F.3d 443 (9th Cir. 1994).
(214.) Id. at 450.
(215.) Id. (distinguishing United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988)).
(216.) Standard Oil Co. v. Moore, 251 F.2d 188, 215 (9th Cir. 1957); see also Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 FORDHAM L. REV. 2285, 2324 (1996) (arguing that business records exception cannot apply to contents of all corporate e-mail as, for example, with personal messages sent on corporate e-mail accounts).
(217.) 5 MCLAUGHLIN, supra note 26, [section] 803.11 , .
(218.) See United States v. Scholle, 553 F.2d 1109, 1125 (8th Cir. 1977) ("Even where the procedure and motive for keeping business records provide a check on their trustworthiness ..., the complex nature of computer storage calls for a more comprehensive foundation.").
(219.) See, e.g., United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) ("[T]he ordinary business circumstances described suggest trustworthiness [of computer records] ..., at least where absolutely nothing in the record in any way implies the lack thereof.") (citation omitted); United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) ("The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness. The mere possibility that the logs may have been altered goes only to the weight of the evidence not its admissibility.") (citation omitted); United States v. Hutson, 821 F.2d 1015, 1019 (5th Cir. 1987) ("Computer records are admissible if the requirements of Rule 803(6) have been met.") (citation omitted); United States v. Croft, 750 F.2d 1354, 1364 (7th Cir. 1984) ("It is well-settled that computer data compilations may constitute business records for purposes of Fed. R. Evid. 803(6) and may be admitted at trial if a proper foundation is established.").
(220.) See, e.g., Moore, 923 F.2d at 915 ("[W]e note that it is not required that computers be tested for programming errors before computer records can be admitted under Fed. R. Evid. 803(6)."); United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) (holding computer records admissible despite employee's testimony about weaknesses in security measures to control access to computer terminals; holding "air-tight security system is not ... a prerequisite to the admissibility of computer printouts"); United States v. Vela, 673 F.2d 86, 89-91 (5th Cir. 1982) (holding computer records admissible despite employee's inability to testify to brand, type, and model of each computer or to vouch for working condition of computers during time period at issue). See generally Rudolph J. Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence, 80 NW. U. L. REV. 956 (1986) (arguing that courts should require proponent of computerized business records to offer evidence of system reliability).
(221.) 43 F.3d 443 (9th Cir. 1994).
(222.) Id. at 450 (distinguishing United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988)).
(223.) United States v. Siddiqui, 235 F.3d 1318, 1323 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001).
(224.) See Jeremy D. Mishkin, The Paper It's Written On, LITIGATION, Summer 1999, at 17, 19.
(225.) FED. R. EVID. 803(2).
(226.) FED. R. EVID. 803 advisory committee's note.
(227.) FED. R. EVID. 803(2) advisory committee's note.
(228.) See 5 MCLAUGHLIN, supra note 26, [section] 803.04-; 30B GRAHAM, supra note 160, [section] 7043.
(229.) See 2 STRONG, supra note 34, [section] 272, at 205-06.
(230.) See, e.g., United States v. Collins, 60 F.3d 4, 8 (1st Cir. 1995) (declarant's statement to police officer held to be excited utterance where declarant, while visibly upset and agitated, told police officer that defendant threatened to shoot declarant); United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995) (excited utterance exception held applicable to statements made by fifteen year old rape victim to mother that she was raped and that perpetrator threatened to kill victim's family, where victim was crying and in semi-hysterical state at time of statements).
(231.) See 5 MCLAUGHLIN, supra note 26, [section] 803.04, at 803-22 n.10 (citing Ferrier v. Duckworth, 902 F.2d 545, 548 (7th Cir. 1990); United States v. Napier, 518 F.2d 316, 317-18 (9th Cir. 1975)).
(232.) See McCurdy v. Greyhound Corp., 346 F.2d 224, 225-26 (3d Cir. 1965) (automobile accident); Arkansas Louisiana Gas Co. v. Evans, 397 P.2d 505, 510-512 (Okla. 1964) (heart attack).
(233.) See 2 STRONG, supra note 34, [section] 272, at 207 (characterizing temporal element as most important factor in determining eligibility for excited utterance exception).
(234.) FED. R. EVID. 803(2) advisory committee's note.
(235.) See, e.g., Brown v. United States, 152 F.2d 138, 138-39 (D.C. Cir. 1945) (3 hours); State v. Wilson, No. 52031, 1987 WL 10042, at *3 (Ohio Ct. App. Apr. 23, 1987) (7 months); see also Swartzberg v. Dresner, 437 N.E.2d 860, 866 (Ill. Ct. App. 1982) ("Most importantly, the requirement of a lack of sufficient time to allow an opportunity for reflection and invention was not present.").
(236.) Wilson, 1987 WL 10042, at *3 (citation omitted); see generally 2 STRONG, supra note 34, [section] 272, at 207-08.
(237.) See, e.g., State v. Vassel, No. 26624-5-II, 2002 WL 339397 (Wash. Ct. App. 2002).
(238.) See Commonwealth v. DiMonte, 692 N.E.2d 45, 50 (Mass. 1998) (citations omitted); State v. Justice, 637 N.E.2d 85, 89 (Ohio Ct. App. 1994) (citations omitted).
(239.) DiMonte, 692 N.E.2d at 50; see also State v. Dixon, 684 P.2d 725, 728-29 (Wash. Ct. App. 1984) ("Speaking generally, the more time that passes will usually increase the likelihood that the controlling stress of the event has lessened and the ability of the declarant to think and fabricate has been recovered.").
(240.) See 2 STRONG, supra note 34, [section] 272, at 208.
(241.) McCandless v. Inland Northwest Film Serv., Inc., 392 P.2d 613, 618 (Wash. 1964).
(242.) Id. at 618-19; see also State v. Hansen, 986 P.2d 346, 350 (Idaho Ct. App. 1999) (holding assault victim's one-page written statement to police was not excited utterance where statement was composed after ten-minute walk to police station and intervening interview with police officer). But see State v. Justice, 637 N.E.2d 85, 89 (Ohio Ct. App. 1994) (holding that domestic violence victim's stress not broken by conscious decision to drive three miles to police station to report incident where victim appeared to be nervous when making statement and when defendant acknowledged that he continued to be upset after he, too, had driven to police station).
(243.) See, e.g., United States v. Narcisco, 446 F. Supp. 252, 288 (E.D. Mich. 1977) (holding that patient's written note to physician made two hours following respiratory arrest was not excited utterance where note was made in response to questions by physician and where patient had previously been "prepped" for questions by another physician who had told patient account of what had happened to him); United States v. Green, 50 M.J. 835, 840 (A.C.C.A. 1999) (holding alleged rape victim's statement did not constitute excited utterance where statement was made day after alleged incident and was made only in response to questioning from roommates); Commonwealth v. Lambert, 735 N.E.2d 1270, 2000 WL 1475821, at *2 (Mass. Ct. App. 2000) ("The statement was written in response to a specific request by a police officer and, according to the victim, with the officer's assistance. Thus, it hardly could be deemed 'spontaneous.'") (table; text in Westlaw); Silas v. Alaska, Nos. A-6658, 3996, 1999 WL 73983 (Alaska Ct. App. Feb. 17, 1999) (holding statements by cousin of assault victim in response to several questions by 911 dispatcher were not admissible as excited utterances); 2 STRONG, supra note 34, [section] 272 at 208.
(244.) Cf. In re Waller, 573 A.2d 780, 783 (D.C. 1990) (in attorney disciplinary proceeding over statement made to court in response to show cause order, holding that respondent could not explain away statement as "slip of the tongue" given that written response to show cause order was not consistent with "excited utterance").
(245.) State v. Ramires, 758, 37 P.3d 343, 348 (Wash. Ct. App. 2002), rev. denied, 2002 Wash. LEXIS 501 (Aug. 7, 2002).
(246.) See, e.g., Dawson v. Commonwealth, 867 S.W.2d 493, 496 (Ky. Ct. App. 1993) (holding assault victim's statement to police to be excited utterance given nature of assault and signs that declarant was visibly upset but characterizing fact that statement was in response to police officer's question as factor weighing against admission); State v. Justice, 637 N.E.2d 85, 89 (Ohio Ct. App. 1994) (holding statement by domestic violence victim admissible as excited utterance: "[T]he fact that Deputy McGill asked Mrs. Justice questions during her oral statement does not appear to have destroyed the spontaneity of that statement.... He interrupted her only occasionally to have her elaborate on certain aspects of her statement...."); State v. Ramires, 37 P.3d 343, 348-49 (Wash. Ct. App. 2002) (holding statement by shooting victim in response to questions by police officer within fifteen to twenty minutes of arriving at hospital was excited utterance), rev. denied, 2002 Wash. LEXIS 501 (Aug. 7, 2002).
(247.) See State v. Briscoeray, 974 P.2d 912, 915-16 (Wash. Ct. App.) (holding factors in determining whether statement constitutes excited utterance include declarant's emotional state at time of statement); State v. Whalen, 520 N.W.2d 830, 832 (N.D. 1994) (holding statements to be excited utterances where police officer testified that declarant and other witnesses were "pretty shaken up" and "in a pretty highly excited state").
(248.) Compare Moon v. State, 44 S.W.3d 589, 593-94 (Tex. Ct. App. 2001) (holding oral statement but not written statement to be admissible as excited utterance given testimony that declarant had calmed down in the fifteen minutes between statements), and State v. Justice, 637 N.E.2d 85, 90 (Ohio Ct. App. 1994) ("[A]lthough Deputy McGill testified that Mrs. Justice still appeared anxious at the conclusion of her oral statement, he was not asked any questions regarding her appearance as she completed her written statement."), with State v. Townsel, 102 Wash. App. 1021, 2000 WL 1250751, at *3-*7 (2000) (table; text in Westlaw) (holding declarant's two oral statements that were one hour apart to be admissible given testimony that declarant was still crying when giving second statement), and State v. Shine, 96 Wash. App. 1047, 1999 WL 5078555, at *3 (Jul. 19, 1999) (table; text in Westlaw) (holding both oral statement and written statement given fifteen minutes later to be admissible where declarant was still visibly upset when making second statement).
(249.) See State v. Cunningham, 40 P.3d 1065, 1076 n.9 (Or. Ct. App. 2002)
(250.) United States v. Narcisco, 446 F. Supp. 252, 288 (E.D. Mich. 1977) (holding written statement not admissible as excited utterance: "In this case there was insufficient evidence that McCrery was excited or under particular nervous stress either when the event occurred or when he made his statement...."); see Bunneister v. State Farm Ins. Co., 966 P.2d 921, 926 (Wash. Ct. App. 1998) (holding that police report submitted by motorist regarding accident victim could not be admitted as excited utterance where there was no evidence of victim's demeanor or seriousness of injuries at time of statement); Nemeth v. Ford Motor Co., 232 N.W.2d 404, 406-07 (Mich. Ct. App. 1975) (holding written statement was not admissible as exited utterance: "In this case, the trial court did not determine whether the declarant ever was or continued to be excited or upset....") (citation omitted).
(251.) Cf. McCandles v. Inland Northwest Film Serv., Inc., 392 P.2d 613, 618 (Wash. 1964) ("[S]peaking words which show opportunity for reflection ... take away from the words spoken ... that degree of spontaneity required to make it a part of the event or occurrence sought to be characterized.").
(252.) See Commonwealth v. DiMonte, 692 N.E.2d 45, 49 (Mass. 1998) ("While such observations of handwriting style may be entitled to some weight in assessing the spontaneity of the facsimile statement, handwriting style may vary due to a number of different circumstances, not only due to the excitement of an underlying stressful event.").
(253.) See State v. Cunningham, 40 P.3d 1065, 1076 (Or. Ct. App. 2002) ("Combined with the victim's habit of contemporaneous note-taking, those circumstances amply support the trial court's determination that the initial notation was generated while the victim was still under the stress of excitement from the first telephone call.").
(254.) See State v. Phillips, No. 17-98-8, 1999 WL 84764, at *6 (Ohio Ct. App. 1999) ("[T]he substance of the statement show[s] that the statement could only be the product of reflection.").
(255.) State v. Ramires, 37 P.3d 343, 348 (Wash. Ct. App. 2002), rev. denied, 2002 Wash. LEXIS 501 (Aug. 7, 2002).
(256.) See, e.g., Bratton v. Bond, 408 N.W.2d 39, 44-45 (Iowa 1987) (holding six page letter properly excluded as too reflective); State v. Dixon, 684 P.2d 725, 728-29 (Wash. Ct. App. 1984) (holding two page letter properly excluded given length and completeness).
(257.) Commonwealth v. DiMonte, 692 N.E.2d 45, 50 (Mass. 1998).
(258.) State v. Justice, 637 N.E.2d 85, 90 (Ohio Ct. App. 1994) (quoting 4 MCLAUGHLIN, supra note 26, [section] 803(2)).
(259.) See, e.g., State v. Townsel, 102 Wash. App. 1021, 2000 WL 1250751, at *6-*7 (2000) (table; text in Westlaw) (holding detailed statement by victim of domestic violence incident to be admissible as excited utterance where statement made twenty to thirty minutes after highly traumatic incident and where victim was in "fragile emotional state" at time of statement).
(260.) See State v. Parks, 576 S.W.2d 751, 752 (Mo. Ct. App. 1979) (holding self-serving statements not admissible as res gestae); State v. Watkins, 442 N.E.2d 478, 480-81 (Ohio Ct. App. 1981) (holding defendant's lengthy, self-serving statement made to police several hours after crime was not excited utterance).
(261.) See Dawson v. Commonwealth, 867 S.W.2d 493, 497 (Ky. Ct. App. 1993) ("[T]he very nature of a formal written report suggests that it lacks spontaneity."). Cf. In re Waller, 573 A.2d 780, 783 (D.C. 1990) (attorney disciplinary proceeding: holding that attorney could not excuse false statement in pleading filed in response to show cause order as "excited utterance" or "slip of the tongue").
(262.) See State v. Smith, 488 N.W.2d 33, 37 (Neb. 1992) ("[T]he very purpose of a diary being to record the conscious reflection of the writer, it is clearly inadmissible as an excited utterance."); State v. Phillips, No. 17-98-8, 1999 WL 84764, at *6 (Ohio Ct. App. 1999) ("The character of the statement as a journal entry ... show[s] that the statement could only be the product of reflection.").
(263.) See Green v. State, 569 A.2d 741, 745-46 (Md. Ct. Spec. App.) (holding that witness to robbery who wrote down license plate number of get-away car acted with too much coolness and deliberation for writing to be admissible as excited utterance).
(264.) State v. Justice, 637 N.E.2d 85, 90 (Ohio Ct. App. 1994).
(265.) See, e.g., State v. Hansen, 986 P.2d 346, 350 (Idaho Ct. App. 1999) ("The very fact that it is in writing suggests time and opportunity for reflective thought in its composition."); Nemeth v. Ford Motor Co., 232 N.W.2d 404, 406 (Mich. Ct. App. 1975) ("While it is not impossible, though quite improbable, that a written statement could qualify, the reflection inherent in committing words to a written form would seem to cast considerable doubt on an assertion that the statement is spontaneous.").
(266.) See State v. Boppre, 453 N.W.2d 406, 427 (Neb. 1990); People v. Taylor, 499 N.Y.S.2d 151, 152 (N.Y. App. Div. 1986).
(267.) Commonwealth v. DiMonte, 692 N.E.2d 45, 48 (Mass. 1998).
(268.) 40 P.3d 1065, 1065 (Or. Ct. App. 2002).
(269.) Id. at 1076.
(270.) Id. at 1076 n. 8.
(271.) Id. at 1076 n.8.
(272.) 966 F. Supp. 90, 99 (D. Mass. 1997).
(276.) FED. R. EVID. 803(1).
(277.) FED. R. EVID. 803(1) advisory committee's note.
(278.) See, e.g., United States v. Portsmouth Paving Corp., 694 F.2d 312, 322-23 (4th Cir. 1982) (holding declarant's statement recounting telephone conversation to be admissible as present sense impression where declarant made statement within few seconds of telephone call).
(279.) See 5 MCLAUGHLIN, supra note 26, [section] 803.03.
(280.) See 5 MCLAUGHLIN, supra note 26, [section] 803.03, at 803-18.
(281.) FED. R. EVID. 803(1) advisory committee's note.
(282.) See 2 STRONG, supra note 34, [section] 271, at 202-03.
(283.) See, e.g., Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 280 (5th Cir. 1991) (holding present sense impression inapplicable to accident report prepared two days after incident where declarant had time to "consciously manipulate the truth" and there was evidence to suggest that declarant had staged accident that was subject of report); 1337523 Ontario, Inc. v. Golden State Bancorp, Inc., 163 F. Supp. 2d 1111, 1120 (N.D. Cal. 2001) (holding present sense impression exception inapplicable to letter written several days after event); Bedford v. Hazzard, No. 64158, 1994 WL 30445, at *3 (Ohio Ct. App. Feb. 3, 1994) (unpublished opinion) (holding written statement to police by witness to accident was "too far removed from the perceived event in order to qualify as a present sense impression"); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (holding oral statements by passengers to police at time of accident admissible as present sense impression but not versions reduced to writing at police station one hour later).
(284.) See, e.g., United States v. Santos, 201 F.3d 953, 963-64 (7th Cir. 2000) (holding present sense impression exception inapplicable to handwritten note added to typewritten draft that was third in series of similar documents prepared by declarant).
(285.) See, e.g., State v. Phillips, No. 17-98-8, 1999 WL 84764, at *6 (Ohio Ct. App. 1999) (holding statement made in journal some time after events described did not qualify as present sense impression).
(286.) See Vitek Sys., Inc. v. Abbott Labs., 675 F.2d 190, 194 (8th Cir. 1982).
(287.) See Chambers v. State, 905 S.W.2d 328, 330 (Tex. Ct. App. 1995) (holding self-serving statement written by defendant one month after crime was not present sense impression); see also Crawford v. State, No. 01-98-00965-CR, 1999 WL 1018173, at *5 (Tex. Ct. App. Nov. 10, 1999) (unpublished opinion) (holding criminal defendant could not introduce his own written statement made to police five hours after murder).
(288.) 966 F. Supp. 90, 99 (D. Mass. 1997).
(290.) Green v. State, 569 A.2d 741, 745 (Md. Ct. Spec. App. 1990).
(291.) See 5 MCLAUGHLIN, supra note 26, [section] 803.03, at 803-17.
(292.) See 2 STRONG, supra note 34, [section] 271, at 202; 5 MCLAUGHLIN, supra note 26, [section] 803.04, at 803-23.
(293.) United States v. Phelps, 572 F. Supp. 262, 265 (E.D. Ky. 1983).
(294.) See In re Cirrus Logic Secs. Litig., 946 F. Supp. 1446, 1468-69 (N.D. Cal. 1996).
(295.) State v. Hope, 33 P.3d 629, 630-32 (Mont. 2001).
(296.) FED. R. EVID. 803(3).
(297.) 30B GRAHAM, supra note 160, [section] 7044, at 333.
(298.) 2 STRONG, supra note 34, [section] 274, at 217.
(299.) United States v. Cardascia, 951 F.2d 474, 487 (2d Cir. 1991).
(300.) See, e.g., State v. Smith, 488 N.W.2d 33, 38 (Neb. 1992) ("The victim's state of mind or emotion at the time she made the entry in her diary is not relevant.").
(301.) See United States v. Hedgcorth, 873 F.2d 1307, 1313 (9th Cir. 1989); Camper v. United States, 493 U.S. 857 (1989); see also United States v. Crosby, 713 F.2d 1066, 1072 n.7 (5th Cir. 1983) (letters written over ten-year period held inadmissible to show state of mind at the end of that period).
(302.) See United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992) (two and one-half weeks); United States v. Bancroft, 829 F.2d 39, 1987 U.S. App. LEXIS 12191, at *5 (6th Cir. Sept. 11, 1987) (table; text in LEXIS) (two weeks); Stone v. Union Fire Ins. Co., 107 P.2d 241, 244 (Colo. 1940) (two months).
(303.) United States. v. Neeley, 980 F.2d 1074, 1083 (7th Cir. 1992) (quoting United States v. Harris, 942 F.2d 1125, 1130 n.5 (7th Cir. 1991)).
(304.) See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96 (1892).
(305.) 2 STRONG, supra note 34, [section] 274, at 219-20; 30B GRAHAM, supra note 160, [section] 7044, at 336-38; 5 MCLAUGHLIN, supra note 26, [section] 803.06, at 803-33.
(306.) See Business Elecs. Corp. v. Sharp Elecs. Corp., 780 F.2d 1212, 1219-20 (5th Cir. 1986), aff'd, 485 U.S. 717 (1988).
(307.) FED. R. EVID. 803(3).
(308.) FED. R. EVID. 803(3) advisory committee's note (1972); see also 30B GRAHAM, supra note 160, [section] 7044, at 348-54.
(309.) See State v. Phillips, No. 17-98-8, 1999 WL 84764, at *6 (Ohio Ct. App. Jan. 29, 1999) (holding page from journal of alleged rape victim inadmissible where only one sentence described state of mind in ambiguous way that tended toward past and where rest of document merely explained declarant's state of mind).
(310.) See, e.g., Colasanto v. Life Ins. Co. of N.A., 100 F.3d 203, 212-13 (1st Cir. 1996) (holding that letters written by insured party to party claiming to be assignee of insurance policies one and one-half months and two months after time of claimed assignment were not admissible to prove intent at time of claimed assignment); Chambers v. State, 905 S.W.2d 328, 329-30 (Tex. Ct. App. 1995) (holding that accused's written statement to police one month after alleged incident of assault with deadly weapon was inadmissible as mere statement offered to prove fact remembered); see also Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295 (1892) ("[declarant's] own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation").
(311.) United States v. Faust, 850 F.2d 575, 586 (9th Cir. 1988).
(312.) United States v. Perry, No. 98-1237, 1998 U.S. App. LEXIS 32511, at *10 (2d Cir. Dec. 23, 1998).
(313.) See United States. v. Nwaigwe, No. 99-443, 2000 U.S. App. LEXIS 18927, at *8-*9 (4th Cir. June 8, 2000).
(314.) See United States v. Cardascia, 951 F.2d 474, 487-88 (2d Cir. 1991). But see Horace Mann Ins. Co. v. Brown, 603 N.E.2d 760, 765 (Ill. App. Ct. 1992) (holding that, for statement to qualify for then existing state of mind exception, "[t]he likelihood of conscious or deliberate misrepresentation must be negated") (citation omitted).
(315.) Cardascia, 951 F.2d at 486, 488.
(316.) Cf. 2 STRONG, supra note 34, [section] 272, at 208 (arguing that factors such as self-serving character of statement and whether statement was prompted by inquiry are "not grounds for automatic exclusion" but, rather, are indicators of whether statement is too reflective to qualify for excited utterance exception).
(317.) 261 F.3d 512 (5th Cir. 2001).
(318.) Id. at 527.
(319.) Id. at 527 n.46.
(320.) 145 U.S. 285, 295-96 (1892).
(321.) FED. R. EVID. 803(3) advisory committee's note (1972); see generally 2 STRONG, supra note 34, [section] 275, at 223 (discussing Advisory Committee's commentary on Hillmon).
(322.) See 5 MCLAUGHLIN, supra note 26, [section] 803.07, at 803-37.
(323.) H.R. REP. No. 93-650 (1973), reprinted in 1973 U.S.C.C.A.N. 7075, 7087.
(324.) See 5 MCLAUGHLIN, supra note 26, [section] 803.07, at 803-36; see also 30B GRAHAM, supra note 160, [section] 7044, at 346-47 n.20 (collecting authority).
(325.) 787 So. 2d 765 (Fla. 2001).
(326.) Id. at 770-72.
(327.) Prather v. Prather, 650 F.2d 88, 90 (5th Cir. 1981).
(328.) Morris Jewelers, Inc. v. General Elec. Credit Corp., 714 F.2d 32, 34 (5th Cir. 1983).
(329.) 263 A.D.2d 182 (N.Y. App. Div. 1999).
(330.) Id. at 195-98.
(331.) No. A078429, 1999 WL 595455 (Cal. Ct. App. July 27, 1999).
(332.) Id. at *5.
(333.) 5 MCLAUGHLIN, supra note 26, [section] 803.05[a], at 803-28 to 803-29.
(334.) See, e.g., Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1160 n.3 (5th Cir. 1982) (stating that, if customers expressed belief that plaintiff and defendant were the same or were related, such statements would be admissible under Rule 803(3)); Kraft Gen. Foods, Inc. v. B.C.-U.S.A., Inc., 840 F. Supp. 344, 347-48 (E.D. Pa. 1993) (holding plaintiff's general manager could testify regarding his own observations of customers whose behavior or statements indicated confusion but could not testify regarding similar instances reported to him by distributors and promoters); Arachnid, Inc. v. Medalist Mktg. Corp., Civil Action No. C89-204C, 1991 U.S. Dist. LEXIS 9055, at *8-*9 (W.D. Wash. Feb. 15, 1991) (holding evidence of customers attempting to order defendant's products from plaintiff to be admissible as statements of then existing state of mind), aff'd, 972 F.2d 1300 (Fed. Cir. 1992); Source Servs. Corp. v. Source Telecomputing Corp., 635 F. Supp. 600, 612 (N.D. Ill. 1986) (holding affidavits of plaintiff's employees recounting telephone calls from consumers seeking to purchase defendant's service from plaintiff to be admissible as statements of then existing state of mind); Freddie Fuddruckers, Inc. v. Ridgeline, Inc., 589 F. Supp. 72, 76 (N.D. Tex. 1984) (holding hearsay letters and statements of customers admissible under then existing state of mind exception to prove actual confusion); see also Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 845 (9th Cir. 1987) (recounting testimony by plaintiff's witness that one hundred times per week consumers asked if plaintiff was associated with defendant or part of same business); Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1431 (7th Cir. 1985) (recounting evidence of customers who came to plaintiff's stores to complain about merchandise ordered from defendant and of more than 180 incidents where customers mistook plaintiff for defendant). But see Ocean BioChem, Inc. v. Turner Network Television, Inc., 741 F. Supp. 1546, 1558-59 (S.D. Fla. 1990) (holding affiant could not testify regarding reactions of others). See generally 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION [section] 23:14, at 23-55 to 23-57 (4th ed. 2002).
(335.) See Black Dog Tavern Co. v. Hall, 823 F. Supp. 48, 56 (D. Mass. 1993) (holding "isolated comment" to be "not persuasive evidence of actual confusion" where affidavit recounting comment "says little about the context of the conversation, other than that it took place while the cab was driving by plaintiff's premises"); HQ Network Sys. v. Executive Headquarters, 755 F. Supp. 1110, 1119 (D. Mass. 1991) (holding "so-called evidence of actual confusion" to be "too vague and evanescent to form a credible basis for the conclusion that ... there was actual confusion").
(336.) See Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1098 (8th Cir. 1996).
(337.) See Source Servs. Corp. v. Source Telecomputing Corp., 635 F. Supp. 600, 612-13 (N.D. Ill. 1986). The court stated:
Defendant asserts these affidavits are incredible because they originate with plaintiff's employees, because they often lack specificity as to the details of the alleged conversations, and because their similar format suggests that they were prepared by a single source. The Court agrees that these arguments have some validity, but notes that, in each case, the criticism goes to the weight to be accorded the evidence, not its admissibility.
Id. at 612 (citations omitted). See also Mile High Upholstery Fabric Co. v. Gen. Tire & Rubber Co., 221 U.S.P.Q. (BNA) 217, 223 (N.D. Ill. 1983) ("Defendant's ... objections that the affiants are biased because they are plaintiff's employees and that they failed to disclose adequately the circumstances surrounding the calls go to the weight of the evidence, not its admissibility."). But see Duluth News-Tribune, 84 F.3d at 1098 ("[T]he vague evidence of misdirected phone calls and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross-examination of the caller or sender regarding the reason for the 'confusion.'").
(338.) 208 F. Supp. 2d 1058 (C.D. Cal. 2000).
(339.) Id. at 1075.
(340.) 126 F. Supp. 2d 1207 (S.D. Iowa 2000), aff'd, 238 F.3d 989 (8th Cir. 2001).
(341.) Id. at 1215-16.
(342.) Self-Insurance, 208 F. Supp. 2d at 1074-75.
(343.) FED. R. EVID. 803(5). Rule 803(5) limits the use that may be made of any such document: "If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Id.
(344.) FED. R. EVID. 803(5) advisory committee's note.
(345.) See 30B GRAHAM, supra note 160, [section] 7046, at 381-82.
(346.) FED. R. EVID. 803(5).
(347.) See 30B GRAHAM, supra note 160, [section] 7046, at 377; 5 MCLAUGHLIN, supra note 26, [section] 803.07[b], at 803-50 to 803-51.
(348.) See 30B GRAHAM, supra note 160, [section] 7046, at 377-78; 5 MCLAUGHLIN, supra note 26, [section] 803.07[d], at 803-51 to 803-52.
(349.) FED. R. EVID. 803(5) advisory committee's note (1972).
(350.) See 30B GRAHAM, supra note 160, [section] 7046, at 378; 5 MCLAUGHLIN, supra note 26, [section] 803.07[d], at 803-52 to 803-53.
(351.) See 5 MCLAUGHLIN, supra note 26, [section] 803.07[c], at 803-52.
(352.) See id.
(353.) Cf. United States v. FMC Corp., 306 F. Supp. 1106, 1137-38 (E.D. Pa. 1969) (holding prior testimony ineligible for past recorded recollection where statements evinced "recurring inability ... to recall material aspects of ... alleged dealings" and were vague and uncertain).
(354.) See 5 MCLAUGHLIN, supra note 26, [section] 803.10[b], at 803-95 to 803-97.
(355.) FED. R. EVID. 801(d)(1).
(356.) Tome v. United States, 513 U.S. 150, 156 (1995).
(357.) FED. R. EVID. 801(d)(1).
(358.) FED. R. EVID. 801(d)(1) advisory committee's note.
(359.) See 5 MCLAUGHLIN, supra note 26, [section] 801.22[c], at 801-34.
(360.) See id.
(361.) See People v. Lee, No. A078429, 1999 WL 595455, at *5 (Cal. Ct. App. July 27, 1999).
(362.) FED. R. EVID. 804(b)(3). As with other Rule 804 hearsay exceptions, the statement against interest exception only applies where the declarant is unavailable to testify as a witness. FED. R. EVID. 804(b). Unavailability includes such situations as privileges that exclude the declarant's testimony, persistent refusal to testify about the subject matter of the statement, lack of memory of the subject matter of the statement, physical or mental illness or infirmity, and inability to procure the declarant's testimony through process or reasonable means--provided that the obstacle is not due to procurement or wrongdoing by the proponent of the evidence. FED. R. EVID. 804(a).
(363.) FED. R. EVID. 804(b)(3).
(364.) FED. R. EVID. 804(b)(3) advisory committee's note (1972).
(366.) See Everett v. State, No. 14-01-00588-CR, 2002 Tex. App. LEXIS 2579, at *4-*5 (Tex. Ct. App. Apr. 11, 2002).
(367.) FED. R. EVID. 801(d)(2)(A).
(368.) See United States v. Siddiqui, 235 F.3d 1318, 1323 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001); Everett, 2002 Tex. App. LEXIS 2579, at *4.
(369.) See Bloom v. Commonwealth, 542 S.E.2d 18, 20-21 (Va. Ct. App. 2001), aff'd, 554 S.E.2d 84, 87-88 (Va. 2001). (370.) FED. R. EVID. 801(d)(2)(D).
(371.) See 5 MCLAUGHLIN, supra note 26, [section] 801.33, at 801-64.
(372.) See Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1155 (C.D. Cal. 2002); Vermont Elec. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F. Supp. 2d 441, 449 (D. Vt. 1999); Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570, 574 n.2 (E.D. Pa. 1999).
(373.) See 5 MCLAUGHLIN, supra note 26, [section] 801.33[b], at 801-67.
(374.) See, e.g., Vizcaino v Microsoft Corp., 120 F.3d 1006, 1007-09 (9th Cir. 1997) (holding that independent contractors were properly classified as employees for ERISA purposes and noting that IRS had reclassified such persons as employees for tax purposes).
(375.) See United States v. Agne, 214 F.3d 47, 55 (1st Cir. 2000).
(376.) See 5 MCLAUGHLIN, supra note 26, [section] 801.33[c], at 801-69.
(377.) Richard L. Marcus, Confronting the Future: Coping With Discovery of Electronic Material, 64 J.L. & CONTEMP. PROBS. 253, 265 (2001).
(378.) FED. R. EVID. 801(d)(2)(B).
(379.) See FED. R. EVID. 805 ("Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.").
(380.) See, e.g., Everett v. Texas, No. 14-01-00588-CR, 2002 Tex. App. LEXIS 2579, at *3-*5 (Tex. Ct. App. Apr. 11, 2002) (holding chain of e-mail messages admissible where communications by one party was admissible as admission of party opponent and communications by other party were admissible as statement against interest).
(381.) FED. R. EVID. 801(d)(2)(B) advisory committee's note.
(383.) See 5 MCLAUGHLIN, supra note 26, [section] 801.31[b].
(384.) See 5 MCLAUGHLIN, supra note 26, [section] 801.31[c]; see, e.g., Commonwealth v. McGrath, 222 N.E.2d 774, 777 (Mass. 1967) ("There is no doubt that the defendant, having heard Mrs. Roy's accusatory statements, replied equivocally. Several of these remarks, particularly when considered in the aggregate, could fairly be interpreted as an admission.").
(385.) FED. R. EVID. 801(d)(2)(B) advisory committee's note.
(386.) See 5 MCLAUGHLIN, supra note 26, [section] 801.31[d].
(387.) See id.
(388.) See Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 870 (1st Cir. 1997).
(390.) See Wright-Simmons v. Oklahoma City, 155 F.3d 1264, 1268-69 (10th Cir. 1998).
(392.) See Alvord-Polk, Inc. v. F. Shumacher & Co., 37 F.3d 996, 1005 n.6 (3d Cir. 1994).
(393.) 285 F.3d 808 (9th Cir. 2002).
(394.) Id. at 818.
(395.) Id. at 821.
(397.) FED. R. EVID. 402.
(398.) FED. R. EVID. 401.
(399.) FED. R. EVID. 401 advisory committee's note.
(401.) FED. R. EVID. 403.
(402.) Morris Jewelers, Inc. v. Gen. Elec. Credit Corp., 714 F.2d 32, 34 (5th Cir. 1983).
(403.) FED. R. EVID. 403 advisory committee's note.
(404.) See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE [section] 5215 (1978).
(405.) See 2 MCLAUGHLIN, supra note 26, [subsection] 403.04[c], 403.04.
(406.) United States v. McVeigh, 153 F.3d 1166, 1202-03 (10th Cir. 1998).
(407.) Id. at 1202 n.25.
(408.) 91 Civ. 5928 (SWK), 1995 WL 326492 (S.D.N.Y. June 1, 1995).
(409.) Id. at *4.
(412.) Id. at *5. See also In re Air Crash Near Roselawn, Indiana, No. 95 C 4593, MDL 1070, 1997 WL 572896, at *4 (N.D. Ill. Sept. 10, 1997) (rejecting Rule 403 argument for excluding e-mail about other incident where e-mail was relevant to establishing awareness and knowledge of condition leading to air crash at issue).
(413.) 43 F.3d 443 (9th Cir. 1994).
(414.) Id. at 449.
(416.) Id. at 449.
(417.) Id. at 450.
(419.) FED. R. EVID. 404(a).
(420.) FED. R. EVID. 404(b).
(421.) FED. R. EVID. 404(a)(3).
(422.) FED. R. EVID. 607.
(423.) FED. R. EVID. 609.
(424.) FED. R. EVID. 608(a).
(425.) FED. R. EVID. 608(b).
(426.) FED. R. EVID. 404(b).
(427.) FED. R. EVID. 608(b).
(428.) See United States v. Abel, 469 U.S. 45, 55-56 (1984) (holding Rule 608(b)'s prohibition on use of evidence of specific instances of conduct does not prevent use of such evidence for another proper purpose such as showing bias); see also 4 MCLAUGHLIN, supra note 26, [section] 608.20[b]; 28 CHARLES A. WRIGHT & VICTOR J. GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE [section] 6117 (1993).
(429.) See 2 MCLAUGHLIN, supra note 26, [subsection] 404.20[a]-[c].
(430.) See id. at [section] 404.21[A].
(431.) See id.
(432.) 202 F.3d 270, No. 98-6421, 2000 WL 32010, at *1 (6th Cir. Dec. 13, 1999) (table; text in Westlaw).
(433.) Id. at *3-*4.
(434.) 766 A.2d 1025 (Me. 2001).
(435.) Id. at 1026-27.
(436.) 2002 WL 312773, at *1 (4th Cir. Feb. 28, 2002) (per curiam) (unpublished opinion).
(437.) Id. at *2. See also People v. Lee, No. A078429, 1999 WL 595455, at *5 (Cal. Ct. App. Jul. 27, 1999) (defendant was accused of forging an e-mail message to make it appear as though her supervisor terminated her at the instruction of her employer's chief executive officer, who dated defendant, e-mail correspondence between defendant and chief executive officer held admissible to demonstrate her motive in seeking to obtain financial payment from chief executive officer, and e-mail correspondence concerning supervisor's reasons for terminating defendant held admissible to show supervisor's state of mind).
(438.) 862 P.2d 487, 491 (Okl. Ct. App. 1993).
(439.) FED. R. EVID. 404(b).
(440.) See Huddleston v. United States, 485 U.S. 681, 685 (1988); 2 MCLAUGHLIN, supra note 26, [section] 404.20.
(441.) See Agushi v. Duerr, 196 F.3d 754, 760-61 (7th Cir. 1999) (collecting authority).
(442.) Cf. Zimmerman v. First Fed. Says. & Loan Ass'n, 848 F.2d 1047, 1056-57 (10th Cir. 1988) (holding evidence that defendant previously failed to fulfill promises of loaning money to others held admissible in promissory estoppel case to establish that defendant never intended to fulfill promised loan at issue).
(443.) No. 1211-K, 1998 WL 82993 (Del. Ch. Ct. Feb. 9, 1998).
(444.) Id. at *2.
Mark D. Robins * ([dagger])
* Mark D. Robins is a partner in the Technology and Intellectual Property Group of Nixon Peabody LLP in Boston, Massachusetts and is an Instructor at the New England School of Law. He received his J.D., cum laude, from Boston College Law School in 1991 and his B.A from Trinity College in 1988. The views expressed in this Article are those of the author alone.
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|Author:||Robins, Mark D.|
|Publication:||Rutgers Computer & Technology Law Journal|
|Date:||Jun 22, 2003|
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