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Case Blurb: Lorraine; How to Authenticate E-mail

Posted by rjbiii on September 20, 2007

Although courts today have more or less resigned themselves to the fact that “[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world,” Safavian, 435 F.Supp.2d at 41, it was not very long ago that they took a contrary view–“[e]-mail is far less of a systematic business activity than a monthly inventory printout.”

  • (References Monotype Corp. PLC v. Int’l Typeface, 43 F.3d 443, 450 (9th Cir .2004) (affirming trial court’s exclusion of e-mail as inadmissible as a business record)).

Perhaps because of the spontaneity and informality of e-mail, people tend to reveal more of themselves, for better or worse, than in other more deliberative forms of written communication. For that reason, e-mail evidence often figures prominently in cases where state of mind, motive and intent must be proved. Indeed, it is not unusual to see a case consisting almost entirely of e-mail evidence.

[E]-mail messages may be authenticated by direct or circumstantial evidence. An e-mail message’s distinctive characteristics, including its “contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances” may be sufficient for authentication.

Printouts of e-mail messages ordinarily bear the sender’s e-mail address, providing circumstantial evidence that the message was transmitted by the person identified in the e-mail address. In responding to an e-mail message, the person receiving the message may transmit the reply using the computer’s reply function, which automatically routes the message to the address from which the original message came. Use of the reply function indicates that the reply message was sent to the sender’s listed e-mail address.

The contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message.

E-mails may even be self-authenticating.

  • Under Rule 902(7), labels or tags affixed in the course of business require no authentication. Business e-mails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902(7).
  • However, the sending address in an e-mail message is not conclusive, since e-mail messages can be sent by persons other than the named sender. For example, a person with unauthorized access to a computer can transmit e-mail messages under the computer owner’s name. Because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.

(References Siddiqui, 235 F.3d at 1322- 23 (E-mail may be authenticated entirely by circumstantial evidence, including its distinctive characteristics));

(References Safavian, 435 F.Supp.2d at 40 (recognizing that e-mail may be authenticated by distinctive characteristics (901(b)(4), or by comparison of exemplars with other e-mails that already have been authenticated (901(b)(3)));

(References Rambus, 348 F.Supp.2d 698 (E-mail that qualifies as business record may be self-authenticating under 902(11)));

(References In Re F.P., A Minor, 878 A.2d at 94 (E-mail may be authenticated by direct or circumstantial evidence)).

The most common ways to authenticate e-mail evidence are:

  • 901(b)(1) (person with personal knowledge),
  • 901(b)(3) (expert testimony or comparison with authenticated exemplar),
  • 901(b)(4) (distinctive characteristics, including circumstantial evidence),
  • 902(7) (trade inscriptions), and
  • 902(11) (certified copies of business record).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., email, FRE 901(b)(1), FRE 901(b)(3), FRE 901(b)(4), FRE 902(11), FRE 902(7), Magistrate Judge Paul W. Grimm | 1 Comment »