The Federal District court for the Western District of New York recently provided a great summary of how to lay foundation for e-mails (as business records). Since e-mail evidence is a part of nearly of case these days, this information should prove helpful to all lawyers. In Beechwood Restorative Care Center v. Leeds, 856 F. Supp. 2d 580, 595-96 (W.D.N.Y.), the trial court set the record straight on e-mails as business records:
The Second Circuit has explained that:
Rule 801(d)(2)(D) of the Federal Rules of Evidence defines as nonhearsay a statement offered against a party that is “a statement 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.” In order to introduce evidence of an out-of-court statement as nonhearsay under Rule 801(d)(2)(D), a party must lay a sufficient foundation by establishing “(1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency.”
Marcic v. Reinauer Transp. Companies, 397 F.3d 120, 128–29 (2d Cir.2005) (quoting Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 537 (2d Cir.1992)). In addition, “admissibility under Rule 803(6) requires both that a [document] have been ‘kept in the course of a regularly conducted business activity’ and also that it was the ‘regular practice of that business activity to make the [document] ….’ ” United States v. Freidin, 849 F.2d 716, 719–20 (2d Cir.1988) (quoting Rule 803(6)).
Under both those rules, then, a proper foundation must be laid before a document can be admitted. Provided that plaintiffs can meet that foundational requirement at trial, these exhibits are not barred by the hearsay rule. See Penberg v. HealthBridge Mgmt., 823 F.Supp.2d 166, 187 (E.D.N.Y.2011) (“A party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record”) (quoting Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, No. H–06–1330, 2008 WL 1999234, at *12 (S.D.Tex. May 8, 2008)); Park W. Radiology v. CareCore Nat’l LLC, 675 F.Supp.2d 314, 333 (S.D.N.Y.2009) (“Though an email may satisfy the business records exception under appropriate circumstances, Plaintiffs do not show that the … emails qualify” because the “employees were not under an obligation to create the emails as a record of regularly conducted business activity.”).
This excerpt sets out most (if not all) of the arguments and legal authorities you will need to argue for or against the admissibility of e-mail evidence based on the business records exception to the hearsay rule. With foundation and admissibility issues frequently popping up with respect to admissibility of electronic evidence, hopefully this guidance from W.D.N.Y. will help save you some time and money in addressing these issues.
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