E-mail as Evidence

• Publication year: 1998
• Pages: 43
• Citation: Vol. 27 No. 5 Pg. 43

27 Colo.Law. 43 Colorado Lawyer 1998.

1998, May, Pg. 43. E-Mail as Evidence

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43

Vol. 27, No. 5, Pg. 43

The Colorado Lawyer
May 1998
Vol. 27, No. 5 [Page 43]

Specialty Law Columns
Civil Evidence
E-Mail as Evidence
by Adam R. Eaton, Roxane J. Perruso

Q: Are the contents of an electronically transmitted message ("e-mail") admissible evidence

A: It depends. An adverse party's e-mail may be admissible under the party admission exception to the hearsay rule. Although courts have been reluctant to admit e-mail under the business records rule, other hearsay exceptions may apply

Assumed Facts

Joe Employee files suit against his employer, SGM, Inc., for sexual harassment. Joe claims, among other things, that Jane Co-worker sent him a sexually suggestive e-mail in December Joe asserts that he complained to his supervisor once in January and again in February, but that SGM did nothing in response to his complaints. SGM counters that Joe complained in February-but not in January-and that his supervisor took prompt action.

Joe moves for admission of the December e-mail from Jane. Joe also seeks admission of an e-mail uncovered during discovery that his supervisor sent to her superior in January reporting that Joe had complained about sexual harassment by Jane.1 SGM moves to admit an e-mail the supervisor sent in February reporting that Joe complained recently of sexual harassment by Jane and that Jane was reprimanded. Assuming the non-offering party objects to the admission of each e-mail, what arguments can be made in favor of admissibility?

Discussion

Exempting E-Mail From The Hearsay Bar

Under certain circumstances, e-mail may not be hearsay at all. In Brill v. Lante Corp.,2 an employee's manager sent an e-mail to another senior manager detailing a conversation with the employee where the employee referred to a client as an "idiot" and suggested that the client be shot. The employee asserted that the e-mail was inadmissible on the subject of her difficulties with clients. The court, however, held that the e-mail was not being used to prove that the employee actually made the derogatory comments, but was being used to show that management honestly believed she did-in other words, the evidence was not hearsay.

Admitting E-Mail Under Hearsay Exceptions

The business records exception is the most commonly used method of overcoming hearsay objections to traditional computer-based documents. Because e-mail systems are a "computer application used to create, receive, and transmit messages and other documents,"3 it...