Email Admissibility Explained
In legal terms, "a court will not admit evidence as a matter of course." For email communication, the evidential value will be determined through admissibility. Admissibility means that something is suitable and acceptable to be put into context for appropriate assessments and evaluations in a case.
Email admissibility is important in a legal context. For example, litigation will come down to what information can be used or not used as evidence to determine who is telling the truth and who is lying . It makes all the difference when determining the facts of a case, so that an objective judgment can be made.
So how does this process happen? What determines whether an email is admitted or not? In the law court, everything is guided by rules, procedure and protocol of the law. These rules are then used to determine the admissibility of evidence in a court, including email admissibility.
An email is admissible if:
Legal Framework for Email Evidence
When it comes to trying cases, there is no difference between an email and a letter or a telephone call. The only difference is that an email is normally transitory and susceptible to loss. The legal criteria for the admissibility of an email are also the same as for letters and telephone calls. In other words, an email must meet the same legal standards for admissibility as any other form of written or verbal communication.
The general legal criteria are that the email must be relevant, authentic, and of integrity. The criteria for relevance means that the email must relate to a fact or facts at issue in the matter in which a party is seeking its introduction into evidence. The criteria for authenticity means that the email must be linked to a party or parties by way of any name, message, content, electronic address, or otherwise. The criteria for integrity means that the email must not have been altered, changed, or modified in any way. Other ancillary criteria related to admissibility include whether or not there is a privilege that exists between the parties (in which case it would be inadmissible) or whether the court is prepared to excise those parts of the communication that are privileged and allow into evidence the unprivileged portions.
It is also necessary to determine whether any of the contents in the email could be deemed hearsay. Hearsay is very narrowly defined and well understood by lawyers.
Proving Email Evidence in Court
To be admitted into evidence, emails in court cases must be authenticated. Federal Rule 901( a) requires only that the proponent produce evidence sufficient to support a finding that the matter in question is what its proponent claims. In determining the proper rule of admissibility, the United States Supreme Court has held that the rules of admissibility are not those of science but "rather a practical guide to the evaluation of evidentiary submissions."
Without authenticating an email or electronic communication, a court may exclude it. A signature, for example, is sufficient to authenticate an email attached to a motion or brief. See Fed.R.Civ.Pro. 10(c) ("All averments of claim or defense made in all actions of a legal nature shall be made in the pleading of the party. The copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Saltz v. W. Union Corp., 191 F.R.D. 154, 162 (E.D.N.Y. 2000) (holding that defendant’s signature on a settlement agreement was sufficient evidence of the authenticity of the document).
Metadata, or data relating to other data, can also authenticate an email. Metadata contains information such as how, when, and by whom a particular set of data was collected, created, accessed, modified or manipulated. Email contains metadata. Databases and other software solutions, such as X1 Social Discovery™, can identify and extract metadata. Typically, a person who receives an email, can provide corroborating testimony. In addition, if a document is on a company server, system administrators can authenticate the metadata associated with an email.
Witness testimony can also authenticate an email. Emails may be authenticated through the testimony of someone who has personal knowledge of the event in question. Fed.R.Ev. 901(b)(1). A witness can testify that the email is what it purports to be. See United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) (finding that a district court did not abuse its discretion in admitting an email where the recipient testified that he was familiar with the sender’s [email] address.").
If a digital signature is required to authenticate an email, the email’s author can use an electronic signature. An electronic signature can consist of an email signature block. Alternatively, electronic signatures can be created by a third-party application, or system. For example, the application we employ, XI Social Discovery™, can search and sort by date of creation, email address, and date file created/received electronically.
Typical Problems with Email Admissibility
Both plaintiffs and defendants may seek to use emails as evidence in a trial. Unfortunately, use of this form of evidence can be complicated. While courts at both the state level and the federal level have worked hard to make emails more easily admitted as evidence, it can still be incredibly tricky. This means that many attorneys and their clients find themselves wondering: Are emails admissible in court? Privacy. Emails can contain sensitive information. If one party threatens another via email, or if an important negotiation is conducted by email, divulging those communications to the court could risk the privacy of the client as well as the integrity of the negotiating process. The court may decide that the stipulation of confidentiality is stronger than the value of the email as evidence, and forbid its introduction in evidence. Alteration. Emails are susceptible to alterations, both intended and unintended. Because an email composing program saves previous versions of the document, it may be possible for someone to change the information contained therein after the fact. This applies to the date, the sender, and the recipient, making the introduction of emails as evidence exponentially harder. Chain of custody. Obtaining a copy of the relevant emails and presenting them in court is more difficult than it seems. Even if a company can provide the requested emails, it may prove challenging to prove chain of custody. Demonstrating chain of custody can take much time and effort, especially if the emails are older. Because it is so difficult to demonstrate chain of custody, it sometimes may be more effective to simply call a witness who is familiar with the email account in question.
Email Evidence Case Law
While we’ve mentioned several emails that have been previously and recently used, some cases are worth diving deeper into.
Moorman v. Baird
Moorman v. Baird was a Mississippi case that set a clear precedent in the admissibility of email evidence. The court ruled that emails can be "authenticated by the testimony of a witness with knowledge that a matter is what it claims to be." This meant that as long as a witness could attest to the validity of the email, the email itself could be considered as real proof in a court of law. This case was later cited in Wilson v. Edinburgh International, a case in which an email was used in a lawsuit against an airline that had lost a child’s stroller. The court ruled that the email in question was both "sufficient and reliable evidence" that the airline had indeed received the stroller at the airport in question. The case set a precedent as a landmark case in the admissibility of emails as evidence.
Espinoza v Galioni
In this case, Espinoza v Galioni, the California Supreme Court faced an interesting case in which a suicide note sent via email was used as evidence in court to prove a person’s intent. The court ruled that the suicidal email, sent some time before the person committed the act, could be used as evidence to prove intent in the death of the man’s ex-wife and another woman who was revealed to be his mistress. The court stated that "emails may be authenticated by extrinsic evidence , including circumstantial evidence from other sources unrelated to the content of the emails." In this case, the authenticity of the email itself was not in question, the owners of the email account had admitted to sending the email, but initially denied that the email formed a part of the information that lead to the suicide. The emails in question were found to be admissible as evidence against the man, and he was convicted.
Cassell v. Southwestern Bell Telephone Co.
In Cassell v. Southwestern Bell Telephone Co., the plaintiff submitted an email as evidence that Southwestern Bell unsuccessfully contested as a lack of authenticated proof. The ruling in the case was greater than the unlawful use of non-authentic proofs, however, it further evaluated email as a form of communication. The court found that the emails were contemporaneous accounts of how the phone call in question took place, and were reliable enough to be used in court to further evaluate the quality of the connection of the telephone call in question. The email in that case was found to have a "bench mark character," as it contained information about how the connection was initiated and completed. These aspects were factual pieces of information that were capable of being confirmed.
These cases, along with many more, showcase the use of emails as authenticated proof, and, in many cases, as a form of evidence that can speak to a user’s intent.
How to Preserve Email Evidence
- Documenting: Whether your emails are stored on a server or the cloud, it is best to maintain accurate records of their storage location. This could be by the system administrator, or by the individual account holder. Identify the relevant dates each account was opened or closed, and the days which a particular number of email boxes were archived. It is generally good practice to verify which of your accounts is easy to access and which is not. This information may be helpful in determining which of your mailboxes should be examined first during the discovery process. Generally, sent, received and drafted messages are all contained within one mailbox. However, this is not always the case. Many email systems store messages separately, either in the "Sent," "Received" and "Drafts" boxes or in separate email boxes. As such, battle lines often form over the size of a specific mailbox, as the other side may try to exclude entire mailboxes from the search.
- Storing: Depending on the nature of the information contained in your emails, proper storage of the messages is essential. If the information is simple, proper storage may not be an issue at all. If the information is critical or confidential, however, it is crucial that the evidence is preserved in its original state. To avoid tampering, store your emails as evidence as "read only." Be sure to give the accounts distinctive e-mail addresses as well as identifying information, such as the name of the user, to avoid any confusion.
- Safeguarding: When appropriate, clearly label files containing email boxes by the name of the account from which they were collected. As stated above, simply labeling files by the date of collection can lead to inaccuracies, as the emails may remain together following the date they were collected for discovery.
The Future of Electronic Evidence
In recent years, there has been an exponential increase in the use of internet-based and smartphone apps, such as WhatsApp and Facebook Messenger, a trend that is likely to continue well into the next decades. As the general public continues to make use of such apps as they conduct their personal and business communications, they may become even more susceptible to claims that their privacy rights have been violated by the government . The recent decision rendered in the In re Search of a Residence in Oakland, California case involves an email owned by the target of a criminal investigation. However, such actions are frequently taken with other forms of digital communication, such as Facebook messenger or WhatsApp. Courts are increasingly called on to decide the question of whether certain search and seizure actions were legitimate based on the circumstances of the case, the local laws and the subsequent judicial decisions. Such tools as evidence are likely to increase over time.
