With the recent passage of theamendments to the FederalRules of Civil Procedure, thelegal press has been filled with articles containinge-discovery advice. At some point,”e-discovery” will need to be convertedinto “e-evidence” for the purposes of summaryjudgment or trial. When you’re faced with havingspent your clients’ time and money to bothproduce e-discovery and mine your opponents’e-discovery to find the “smokinggun,” it’s critical to ensure you can getthose e-mails into evidence — or keepthem out.
Many practitioners think that e-mailsare like business letters and will be admittedinto evidence just as easily. E-mails,however, may be more prone to problemsof authenticity and hearsay than traditionalwritten documents. People often writee-mails casually, dashing off commentswith an informality they’d never usewith a letter. Little care is given to grammarand context. Their signature or eventheir name may be omitted. Authenticatingan e-mail presents issues not faced with atraditional letter with its formal letterhead,paragraph structure and signature block.Additionally, e-mails are arguably moresusceptible to after-the-fact alteration.
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