Evidence at the electronic frontier: introducing e-mail at trial in commercial litigation.

AuthorRobins, Mark D.
  1. INTRODUCTION

    Electronic mail or "e-mail" has become the very fabric of commercial litigation. Yet, despite the fact that a veritable cottage industry has sprung up to assist litigators in discovering such evidence, and an extensive body of commentary has developed concerning such discovery issues, relatively little attention has been given to admissibility of e-mail. Indeed, among reported decisions, relatively little guidance exists--particularly in the context of commercial litigation. Of course, relatively few cases proceed to trial and, in civil litigation, cases are increasingly resolved through pretrial dispositive rulings, which inevitably emphasize substantive law rather than evidentiary rules, or through alternative dispute resolution, which contributes nothing to reported jurisprudence.

    In light of this limited guidance, this Article explores a range of evidentiary issues likely to affect e-mail with a particular focus on commercial litigation. Given the paucity of decisions on point, this Article draws from cases involving e-mail in other types of settings, as well as cases involving analogous types of evidence. This Article assumes the applicability of the Federal Rules of Evidence, while drawing freely from analogous state authority. Section I introduces the nature of e-mail and its use in the commercial world. Section II addresses authenticity. Section III focuses on the best evidence rule. Section IV navigates the hearsay rule and its many exceptions. Finally, Section V discusses the rules governing relevance and prejudice.

    Although this Article is organized according to types of evidentiary rules, certain common themes transcend categorization by rule. Specifically, e-mail tends to present three types of evidentiary issues. The first type of issue concerns whether the computerized nature of such evidence makes fabrication or error more likely. This type of issue cuts across rules governing authenticity, best evidence, and, to a lesser extent, the business records exception to the hearsay rule. The second type of issue has to do with the effect of the threaded nature of e-mail communications by which a single document can contain messages that are responsive to one another and that have been forwarded to other parties, as well as related attachments. This quality of e-mail communications has particular salience for authenticity, the doctrine of completeness, adoptive admissions, and hearsay exceptions that turn on spontaneity. The third type of issue relates to the manner in which e-mail is used to communicate. This type of issue presents numerous questions including: whether e-mail messages are more or less spontaneous than other types of communications; whether e-mail messages are more or less focused than other communications; whether e-mail messages are more or less comprehensible than other forms of communications; whether e-mail messages--through distinctive compositional style, as well as other features unique to the medium--are more or less identifiable than other writings; and whether e-mail messages are more or less likely than other forms of communications to contain matters that are inappropriate. These issues of practice, style, and content cut across authenticity, the hearsay rule and its various exceptions, and the rules governing relevance and unfair prejudice. As this summary of issues suggests, the purposes and styles of e-mail communications are at least as broad as any other type of written communication, which makes categorical generalizations hazardous. However, the media-neutral approach of the Federal Rules of Evidence is well suited to this flexible and varying form of communication.

  2. E-MAIL AND ITS COMMERCIAL USE

    In order to understand how e-mail works, one must understand certain information about the Internet. The Internet was developed in 1969 by the Department of Defense's Advanced Research Project Agency ("ARPA") as a network linking computers in different locations across the country that were owned by the military, defense contractors, and university laboratories. (1) Information is exchanged between computers linked to the Internet through protocols known as "packet switching," which break down messages into smaller "packets" of data. These smaller packets are routed through computers that transmit information across the Internet until they reach their destination point, where the packets are reassembled. (2) The destination points of computers linked to the Internet are identified by an Internet protocol address assigned to each computer linked to the Internet. An Internet protocol address consists of a string of numbers separated by periods. Because these numbers are unwieldy, computers with Internet protocol addresses are assigned "domain names" that are easier to remember. A domain name consists of a character string (known as a second level domain) followed by a so-called top level domain such as ".com" or ".edu" that supposedly designates the general purpose of the computer as commercial, educational, or otherwise. Thus, a company will typically have an Internet protocol address consisting of its company name in the second level domain and the ".com" designation as the top level domain, as in "microsoft.com." (3) Just as each computer linked to the Internet has its own Internet protocol address, an individual's e-mail address also has a unique Internet protocol address. This address takes the form of a character string, followed by the symbol "@," followed by the domain name of the computer linked to the Internet, as in "username@company.com." (4)

    E-mail is but one method of communicating over the Internet. (5) The first e-mail message was sent using the Defense Department's precursor to the Internet in 1971. (6) However, e-mail gained popularity with the rise of local area networks ("LANs"), or computers within an organization that were linked to a closed network. Nevertheless, as the Internet gained popularity, closed e-mail systems on LANs were replaced with software allowing the exchange of e-mail with all other computers linked to the Internet. (7)

    The profound effects of the Internet, in general, on the commercial world are difficult to understate. Yet, a number of surveys have found that, of all the means of communication made possible by the Internet, e-mail has had the greatest impact on the workplace. (8) According to one recent survey, executives spend an average of two hours per day using e-mail, and the average employee spends between two and two and one-half hours per day using e-mail. (9) Similarly, a recent survey of lawyers at the nation's largest law firms found that lawyers receive an average of forty-eight e-mail messages per day. (10) The business world has been described as "addicted" to e-mail. (11) Similarly, e-mail has been described as the "default mode of communication in the workplace." (12) For example, large numbers of employees report using e-mail to ask the person sitting next to them a question. (13) Employees spend so much time reviewing and responding to e-mail that e-mail has been cited as taxing corporate productivity. (14) Many chief executive officers are so overloaded with e-mail messages that they use assistants to screen them. (15)

    Many of these e-mail messages are inappropriate or drafted with far too little thought. As a medium allowing spontaneous and instantaneous communication without directly sensing the presence of one's interlocutor in the seeming privacy of one's own workstation, e-mail appears to encourage people to let their guard down and communicate things they would otherwise never communicate. (16) For example, in one recent survey of professionals, some twenty-nine percent of respondents reported that either they or someone they knew at their place of employment had been disciplined for sending e-mails that were deemed inappropriate. (17) Indeed, even when drafted with good intentions, e-mail messages often create the wrong impression and cause unintended offense, because the sender did not adequately consider how the message might be interpreted by the recipient. (18) Moreover, the casual communications that are recorded by e-mail messages are the type of communications that often went unrecorded prior to e-mail. (19)

    Not only is e-mail generating new types of evidence, but this evidence has surprising longevity--particularly given commercial computer storage practices. In addition to the hard drive of the user who created an e-mail message, the message may be stored on the hard drive of the recipient or of anyone to whom the message was forwarded, as well as on network servers, archival tapes containing periodic back-ups of a company's computer data, and portable media used by employees to create copies of particular information. (20) Furthermore, even when a file is "deleted" from a particular storage medium, this action merely designates the disk space holding that file to be overwritten with new data, which may not occur for some time, depending upon how storage space is allocated for new data. (21) Indeed, even when archival tapes are reused, old files may still be recovered beyond the end of the space occupied by any subsequent back-ups. (22)

    As a result of these factors, e-mail has become the staple of most litigators' discovery diet. Nevertheless, in reported decisions involving e-mail, commercial disputes arrived somewhat late on the scene. For instance, during the early to mid 1990s, substantive decisions involving e-mail occurred largely in the employment and criminal fields. (23) In the late 1990s, as the appearance of e-mail evidence in reported decisions increased rapidly, the employment and criminal fields continued to provide the context for many of the reported decisions involving e-mail, although commercial litigation appeared as one of the leading growth areas for such decisions. (24)

  3. AUTHENTICATING E-MAIL EVIDENCE

    As with any item of evidence, the first...

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