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.



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.

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.

It Takes Two to Tango…and Form a Conspiracy over Text Messages

tangoA “conspiracy” is an “agreement by two or more persons to commit an unlawful act.”  Black’s Law Dictionary, Pocket Edition, 1996. 

Like a tango dance, a conspiracy takes a partner.  However, the number of people in a conspiracy can quickly make it look like a square dance, with everyone needing to follow the dance calls to complete the conspiracy. 

 Under Federal Rule of Evidence 801(d)(2)(E), statements “by co-conspirators are properly admissible as non-hearsay if (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy.” United States v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009). 

 In U.S. v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009) the defendants were in a conspiracy to 1) steal and sell cars and 2) drug running. 

 One of the defendants sent a co-defendant text messages with Vehicle Identification Numbers (VIN).  These text messages were in furtherance of the auto theft conspiracy.  However, there was no evidence the sender who provided the VINs was part of the drug trafficking conspiracy.  As such, the sender of the text messages was not part of the entire conspiracy. 

 The defendant who sent the text messages picked a dance partner, put on his dancing shoes and made it to the dance floor.  However, he did not make the song request for the drug trafficking arm of the conspiracy.  If he had, he would have been a member of both arms of the criminal conspiracy. 

 Both civil and criminal cases will see text messages, instant messages or tags on social networking sites come into play into lawsuits.  Whether they are non-hearsay, present sense impressions or party admissions will be the subject many court opinions to come.

Blogs Comments as Existing State of Mind Exception to the Hearsay Rule

The University of Kansas sued a sportswear company claiming violations of state and federal trademark laws through the unauthorized and unlicensed sale of the school’s apparel.  Univ. of Kan. v. Sinks, 565 F. Supp. 2d 1216; 2008 U.S. Dist. LEXIS 23765 ( D. Kan., March 19, 2008 ).

The Plaintiff offered internet postings to show confusion and consumer reaction to the Defendant’s products.  The Defendant brought a motion to strike the blog postings as inadmissible hearsay. 

Plaintiffs claimed the blog postings were not offered for the truth of the matter asserted, but to show the state of mind of the posters under Federal Rule of Evidence 803(3).   This Rule states:

Then existing mental, emotional, or physical condition. 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), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.  

 The parties engaged in a battle of precedents, with the Defendants citing cases where internet evidence was barred as “any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R. Civ. P. 807.” Univ. of Kan. v. Sinks, 1230, citing St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999). 

kim-wave The Plaintiffs in turn cited cases where hearsay evidence from the internet was admissible, including where internet postings were admitted “as evidence of confusion because they were not submitted for the ‘truth of the matter asserted’ and did not violate the hearsay rule.”  Univ. of Kan. v. Sinks, 1231, citing RDK Corp. v. Larsen Bakery, Inc., No. 02-C-0675, 2006 U.S. Dist. LEXIS 53298, at *31, (E.D. Wis. July 31, 2006).

 The Court found the hearsay evidence was not offered for the truth of the matter asserted, but to support the claim of actual confusion.  The internet postings were only to be admitted to prove the state of mind of the posters, namely, they were confused. Univ. of Kan. v. Sinks, 1231.

 Cases like this will likely walk a fine line.  Courts will guard against hearsay being offered for the truth of the matter asserted.  However, considering the numerous ways people can express themselves online from blogs to Facebook status messages to to tags on photos to Twitter, these issues will continue to be litigated.