March 24, 2014. A recent decision out of the Seventh Circuit Court of Appeals serves as a healthy reminder for attorneys seeking to utilize emails at trial. In the case, Devbrow v. Gallegos, the plaintiff had sought to introduce an email from one of the defendants into evidence. The defendant himself had actually produced the email in response to a written discovery request. Nonetheless, since the plaintiff failed to authenticate the email, it was excluded at trial. A copy of the case can be found here.
Emails can be authenticated in various ways, such as through testimony of a witness with knowledge, or through distinctive characteristics such as appearance, contents, substance, or internal patterns taken in conjunction with other circumstances. However, in many instances, attorneys have to rely upon purely circumstantial evidence, such as email addresses; prior communications between the sender and recipient; evidence suggesting information in the email is unique information which the sender would very likely have possessed; or, of course, through testimony from the recipient of the email.
The case serves as a reminder to attorneys: don’t assume emails will be admissible at trial simply because the other party produces them (although, note that in some jurisdictions this might very well suffice). Rather, attorneys should avoid any issues by being proactive long before trial. Start thinking about authentication issues right away, and at least a few months before trial; send Requests for Admission; or get admissions during depositions. Don’t show up at trial without a game plan.
For more information about litigation or authenticating emails at trial, contact the Goosmann Law Firm at info@goosmannlaw.com or call 712-226-4000.