Are “Read Receipt” Emails Hearsay?

How do you authenticate “Read Receipt” auto-generated emails? Are the messages hearsay?

social-349528_1280This issue was raised by a Defendant who challenged “Read Receipt” emails generated by one of the Defendants after reading an email from the Plaintiff.

The Court rejected the argument that the “Read Receipt” email was unauthenticated hearsay. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., 2015 U.S. Dist. LEXIS 30583, 31-32 (E.D.N.C. Mar. 10, 2015).

The Court outright questioned whether a “Read Receipt” email was even a statement, which requires that an assertion is intended under Federal Rules of Evidence 801(a). The Court considered that even if an auto-generated “Read Receipt” email was a statement, it would be admissible against the Defendant because the email was created by the Defendant reading (or at least opening) the Plaintiff’s email message. This is an unique way of saying “Read Receipt” emails are party admissions under Federal Rule of Evidence Rule 801(d)(2)(A) and (D), because the message came from the Defendant’s work email for a matter he was supposed to investigate as part of his job function. Fox, at *30-31.

The Defendant argued the “Read Receipt” was not properly authenticated, because the Plaintiff failed to have a technical affidavit explaining how “read receipt” emails are generated for reliability. Fox, at *31.

The Court rejected the argument the Plaintiff needed to explain how Defendant’s auto-generated email was created. While there are times for technical affidavits, this was not one of them according to the Court. The Court explained that since the email was being admitted as a statement of a party opponent, the Court did not require a technical report to ensure the reliability of the email. Fox, at *31, citing Fed. R. Evid. 801(d)(2).

Bow Tie Thoughts

Authentication and hearsay are issues Courts deal with daily over electronically stored information. I am confident this was not the first Court to deal with the issue of “read receipt” emails, but it was the first I have seen.

I would argue the auto-generated message is not hearsay, because there is no statement from a human being. However, one could argue with a straight face such messages are statements, because the data generated from the time it was read and the sending of the message is an assertion of fact. That being said, finding the “read receipt” message was a party admission was a very clever argument.

If You Also Love Evidence 

I have loved Evidence since law school. I am very happy to be doing a webinar with Guidance Software on the Admissibility of Electronically Stored Information on April 8, 2015, with Judge Matthew A. Sciarrino, Jr. of the Kings County Supreme Court, Kathleen F. McConnell, Esq., of Seyfarth Shaw LLP, and Chad McManamy, Esq., Vice President of E-Discovery and Assistant General Counsel for Guidance Software. If you would like to learn more and attend, you can register at here. I am really looking forward to the webinar.

 

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Social Media Hearsay Objections

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

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Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.

The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id. 

Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.

I, Hearsay: Computer Generated Reports as Testimony

Is a computer generated printout a statement according to the hearsay rules?  California law says “no.”  People v. Nazary, 2010 Cal. App. LEXIS 2207 (Cal. App. 4th Dist. Dec. 31, 2010)

People v. Nazary is an appeal from an embezzlement conviction.  Part of the evidence offered against the Defendant included computer generated printouts (receipts).  The Defendant opposed the computer generated evidence as hearsay, because the receipts were “offered for its truth to establish that he had stolen money…” Nazary, at *52-53. 

This raises the computer age-old metaphysical issues of whether a computer is a “person” who can make a statement.  To the eternal dismay of science fiction fans, the Court of Appeal did not once invoke Hal 9000 or reference the Outer Limits “I, Robot” trial. 

The Court of Appeals did, however, review the California Rules of Evidence. 

California Evidence Code 1200(a) defines Hearsay as follows:

“[E]vidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”; 

Nazary, at *53. 

A “statement” is defined under California Evidence Code section 225, as follows:

 “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression”;

Nazary, at *53. 

A “person” is defined under California Evidence Code section 175 as “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” Nazary, at *53. 

In the words of the Court of Appeal, the California Evidence code “does not contemplate that a machine can make a statement.” Nazary, at *53.  However, the witnesses who described the computer generated reports, plus how the computer generated the reports, were subject to examination for the jury.  Nazary, at *54-55.

As the Court of Appeal explained, the admissibility issues with the computer generated reports were foundational.  The issue was whether the computer was operated correctly or possible data errors.  These issues could be addressed by the cross-examination of the expert who used the computer system.  Nazary, at *54.

The Court of Appeals found the receipts were machine generated and thus not hearsay.  Nazary, at *54-55. 

The “Hearsay Rule” requires “testimonial assertions shall be subjected to the test of cross-examination.”  Nazary, at *55.   In the words of the Court, there was “no possible scenario” where the computer system could have been cross-examined.  Nazary, at *55. 

However, those who used the computer system to create the receipts were subject to cross-examination.  Nazary, at *55.  The evidence of machine error were presented for the jury, which was all that was required under California law.  Id.  

Bow Tie Thoughts

Computers do not take an oath to tell the truth and testify in court.  One day, we might live in that science fiction world.  Given that one can fly across the United States with an Internet connection in 5 hours is something that would have been science fiction to someone 90 years ago, do not be surprise if our grandchildren live in a world where a computer can testify as to how data was generated.

Text Messages as Party Admissions to Prove a Prima Facie Case

The Plaintiff in a sexual harassment case was able to demonstrate a prima facie case to overturn a summary judgment on the narrow issue whether she was retaliated against for filing her lawsuit.  Magiera v. City of Dallas, 2010 U.S. App. LEXIS 16802 (5th Cir. Tex. Aug. 11, 2010).

The key evidence? A text message.

One of the challenges to the summary judgment was whether there was sufficient evidence for a jury to find that the Plaintiff was removed from her field training officer (FTO) duties because of her sexual harassment complaint.  Magiera, at *9-10.

The Plaintiff’s removal from FTO duties meant she received less compensation.    Id.

The Defendant conceded in oral argument that the Plaintiff being removed from her FTO duties was a material adverse action. Id.  

Here is how the Plaintiff was able to show a prima facie case:  A sergeant testified that her supervising lieutenant stated that the Plaintiff was not on FTO because another lieutenant was “angry” the Plaintiff had filed her lawsuit.  Magiera, at *10.

The same sergeant sent the Plaintiff the following text message:    

“I was told by [W]oodbury that [B]arnard said you had a law suit against the city and you shouldnt [sic] train because of the suit.”

Magiera, at *10.

The Plaintiff argued that the statements in text message evidenced the retaliation for her lawsuit.  Magiera, at *10.

The Defendant challenged the text message as not competent summary judgment evidence, because it was hearsay.  Magiera, at *10-11. 

The Plaintiff argued that the statement was admissible as a party admission, under Federal Rule of Evidence Rule 801(d)(2)(D).

The Party Admission Rule states that an admission by a party-opponent is not hearsay, if “[t]he statement is offered against a party and 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.”  Magiera, at *11, citing Federal Rule of Evidence Rule 801(d)(2)(D).

The Court agreed.  The Lieutenant who made the statement (if it was true) was speaking in the course of his employment, which would make the statement admissible as a party admission.  Magiera, at *11.

The Court held that the Plaintiff made a prima facie case on the retaliation claim and reversed and remanded on those specific grounds.  Magiera, at *15-16. 

Bow Tie Thoughts

Text messages are quick and easy to send.  Attorneys should not overlook requesting text messages in discovery, there could be a smoking gun to make your case…or at least survive a motion for summary judgment.

Admissibility of Email Strings and Co-Conspirator Emails

The Federal Rules of Civil Procedure are frequent superstars spotlighting requests and production of electronically stored information in case law.  Whether or not such discovery is admissible is another story. 

Park W. Radiology & Park W. Circle Realty v. Carecore Nat’l Llc, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009) is an extensive opinion addressing the admissibility of email in motions in limine. 

Admissibility of Email Strings

The Plaintiff attempted to exclude an email string pursuant to the Federal Rules of Evidence 402 (Relevancy), 403 (Prejudice), 608 (Character Evidence/Witness Conduct), and 609 (Impeachment by Evidence of Conviction of a Crime). Park, at *8.

The email string contained the statement, “I was hoping that her friends would want to have sex with [sic] me after they saw the ring.”  Park, at *8. As one can imagine, the Plaintiffs argued the email was irrelevant and highly prejudicial if it somehow was relevant.  Park, at *8.

The Plaintiffs further claimed the email chain contained attorney-client communications.  Park, at *8.

The Defendants in turn argued the email was relevant in showing the bias of one of the Plaintiffs’ trial witnesses.  Park, at *8-9. 

The Court held the section of the email string that could show bias of a trial witness was relevant. However, the section stating, “I was hoping that her friends….” was so prejudicial that it outweighed any relevance it had in showing bias.  As such, that section would need to be redacted for trial.  Park, at *9.

Planning a Conspiracy on Email 

The Defendants sought preclusion of emails from a doctor as hearsay between nonparties (Federal Rule of Evidence 802).  Park, at *39. 

The Plaintiffs claimed the email chain showed a conspiracy because a doctor who was affiliated with the Defendants’ Board of Managers “suggested” to the other doctors on the email that the Defendant was “unlawfully controlling the market for imaging centers and suggesting a business decision agreeable to the conspiracy.”  Park, at *40. 

The Plaintiffs argued that the emails were not hearsay, because they were statements between co-conspirators under Federal Rule of Evidence Rule 801(d)(2)(E). Park, at *40. This provision requires the existence of a conspiracy and the participation of the declarant in furthering the conspiracy.  See, Federal Rule of Evidence Rule 801(d)(2)(E).

The Court issued a “preliminary” denial of the Defendants’ motion in limine to exclude the email messages.  Park, at *40-41.  The Court would allow the use of the email exchange, if the Plaintiffs could meet the co-conspirator requirements of Federal Rule of Evidence Rule 801(d) (2) (E).  Id.

Bow Tie Thoughts

Attorneys and vendors often get wrapped up in the production and review of electronically stored information.  This is with good reason, considering the volume of ESI that can appear in discovery.  However, litigation tends to be over the 10 or 20 key documents that prove a party’s case to the jury.  Being ready for any admissibility challenges can help avoid your case theory getting derailed by motions in limine to exclude a key email or instant message.

Attorneys can help prepare for the admissibility of electronically stored information while doing document review.  Coding fields can be set up for issues such as “Relevant,” “Authentication,” “Best Evidence,” “Hearsay” and “Probative Value vs Unfair Prejudice.”  Reviewing attorneys can consider the admissibility factors as they are performing document review, which may impact their choices on which documents to ultimately use in trial or mediation.

An Email State of Mind: Confessions of an Online Fraudaholic

GuiltyA Criminal Defendant maintained an online business that was a shame: Orders were made and money paid, but the items ordered were either not sent or non-conforming goods instead.  This is all fun and games for the Defendant until an undercover FBI agent placed orders in a sting operation. 

The Defendant challenged the admission of customer email messages from the trial as they “were hearsay and that their admission was highly prejudicial and violated the spirit of the Confrontation Clause of the Sixth Amendment.”  United States v. Levy, 2009 U.S. App. LEXIS 14163, 8-9 (4th Cir. Va. June 30, 2009).   The Court did not agree.

Background Facts: Online Business Fraud

An online business owner ran two companies selling women’s fashions.  The Defendant served as the victim’s supplier.  Levy, 1-2. Both online businesses failed because of customer’s complaining they did not receive the ordered merchandise and demanded refunds.  Levy, 2-3.

The Defendant set up her own online business, with a laundry list of people not getting what they ordered for several years.  

Shopping SpreeOne person made several attempts to get her merchandise through the Defendant’s website, which cost the Defendant a transaction fee with each attempt.  The Defendant sent the customer fraudulent documents from a make believe law firm that included a falsified complaint, apparently to scare the victim off.  Levy, 3-4.  

An undercover FBI agent placed an order through the Defendant’s website and true to form, did not get what she ordered.  The FBI eventually searched the Defendant’s house after the FBI orders were never shipped. Levy, 4.

The Government introduced into evidence at trial emails collected from the Defendant’s computer.  The emails were exchanges with angry customers and the Defendant’s replies.  Levy, 5.

The Defendant was convicted of three counts of mail fraud and four counts of wire fraud.  Levy, 5-6.  The Court estimated at least eighty-two victims who suffered $ 168,300.77 in damages.  Id. The Defendant was sentenced to 46 months’ imprisonment and pay $ 168,300.77 in restitution. Levy, 1.

The Defendant’s appealed followed.

Email & Hearsay: The Truth of the Matter Asserted

The Defendant challenged the customer email evidence on appeal as 1) hearsay and 2) the evidence was highly prejudicial and violated the 6th Amendment Confrontation Clause.  Levy, 8-9.

The Court did not agree.  The Court held the email messages were not hearsay, because they were not offered for the truth of the matter asserted.  Levy, 9.

The customer email messages were offered so the Defendant’s party admissions in her email would show the context of the Defendant’s “intent, lack of mistake, and notice.” Levy, 9.

As such, the customer email messages were not hearsay and thusly did not violate the Confrontation Clause.  Levy, 9.

The Defendant’s conviction was upheld, but her sentence was vacated on sentencing grounds and remanded. Levy, 13.

Bow Tie Thoughts

Many of the e-Discovery admissibility examples are coming from criminal cases, since they go to trial more.  As more civil cases go to trial, Courts will likely look to the “e-admissibility” cases from criminal convictions for guidance in authenticating ESI, addressing hearsay and other evidentiary issues.

A Note on Judicial Notice of Blogs and Admissibility of Electronically Stored Information

speechmikeIn a trade secret case, the Defendants attempted to strike the Plaintiffs’ complaint pursuant to the California Anti-SLAPP statute.  The Defendants failed to make a prima facie showing that the complaint arose from protected activity.  World Fin. Group v. Hbw Ins. & Fin. Servs., 2009 Cal. App. LEXIS 553 (Cal. App. 2d Dist. Apr. 16, 2009).

The Defendants on appeal requested judicial notice of blogs, online articles and websites.  This argument and request was made for the first time on appeal.  The Defendants claimed the online material showed the content of the communications at issue here involve a matter of public interest.  Defendants claimed the Court needed to take judicial notice of the evidence pursuant to California Evidence Code section 459(a)(2).  World Fin. Group, fn 7, 13-14.

California Evidence Code 459(a)(2) states, in relevant part:

The reviewing court shall take judicial notice of :…(2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.

The Court pointed out one error in Defendants’ use of California Evidence Code 459(a)(2): The statute does not compel judicial notice of documents that were NOT offered in the trial court.  World Fin. Group, fn 7, 14.  The argument that Defendants’ speech involved a matter of public interest (as evidenced by the online material) was being advanced for the first time on appeal and had not been presented to the trial court.  Id. This ran counter to the judicial notice statute and was denied for additional reasons. 

gavel1Judicial Notice was designed so a party does not have to formally present evidence to prove a fact that is “outside the area of reasonable controversy.”  Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §8.6(B), citing FED. R. EVID. 201, Advisory Committee Note. 

Examples of judicial notice for electronically stored information include:

Online videos of “The Guy from Boston” from a local news channel, other websites and a blog.  Ligotti v. Garofalo, 2008 DNH 123, fn 15, 21-22 (D.N.H. 2008).

Website information from Amazon.com and American Academy of Allergy Asthma & Immunology in ERISA action.  Arkfeld, §8.6(C), citing Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956 (C.D.Cal.Jun.20, 2005).

Online meeting minutes from the City’s Board of Mayor and Aldermen attached to an attorney’s affidavit as a public record.  Williams v. City of Franklin, 586 F. Supp. 2d 890, 894 (M.D. Tenn. 2008).

The admissibility of electronically stored information can take many paths in court, from party admissions on blogs, present sense impressions on Twitter or layered hearsay on cell phone video sent with an accompanying text message.  However, these issues almost always have to be raised at the trial court and not for the first time on appeal.