As businesses and technology evolve, business documents and phone calls have been replaced by quicker and less formal methods of communication such as emails. Since emails are one of the most efficient and common forms of communication, it is no surprise that emails are important pieces of evidence in litigation.

The most frequent objection lodged against emails are hearsay objections under Federal Rules of Evidence (FRE) 801(c) and 802. Although emails sent by company employees usually qualify as admissions or fall under the "Records of Regularly Conducted Activity" hearsay exception or, as it is more commonly known, the business records exception, FRE 803(6), that is not always the case. See Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 Fordham L. Rev. 2285 (1996) (analyzing whether emails constitute a business record over twenty years ago).

FRE 803(6) has five components: (1) the record must be "made at or near the time by—or from information transmitted by—someone with knowledge"; (2) the record must be "kept in the course of a regularly conducted activity of a business"; (3) making a record must have been a "regular practice of that activity"; (4) the above three criteria must be shown by testimony or certification by a custodian or other qualified witness; and (5) the opponent must not show that the document is untrustworthy. FRE 803(6)(A)-(E).

Courts analyzing the admissibility of emails under the FRE 803(6) framework have taken varying approaches. Some courts have read the rule strictly, noting that emails require greater scrutiny because of its convenience and informality. See, e.g., In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2012 WL 85447, at *3, *5 (E.D. La. Jan. 11, 2012) (establishing a six-part test to analyze whether an email constitutes a business record); see also LeBlanc v. Nortel Networks, No. 3:03-CV-65, 2006 WL 8445961, at *4 (M.D. Ga. June 30, 2006) ("Indeed, because of its informality and speed, email is something of a hybrid between traditional written correspondence and oral communication, and it therefore requires scrutiny before being considered a record of regularly conducted activity.").

Other courts have taken a more lenient approach to the admissibility of emails under FRE 803(6) because "[e]mail is an everyday, well-recognized, and common means of modern business communication." See, e.g., Graham v. Noeuy, No. 2:15-cv-04155, 2016 WL 9045739, at *2 (W.D. Mo. Nov. 21, 2016) (summarily admitting the emails "consistent with the FRE 803(6) factors"); Green v. Springfield Med. Care Sys., No. 5:13-cv-168, 2014 WL 2875850, at *2 n.1 (D. Vt. June 24, 2014) (quoting United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010)) (admitting emails after noting that "[t]he Second Circuit has 'stated that Rule 803(6) favors the admission of evidence rather than its exclusion if it has any probative value at all.'"). Suffice to say that there is no blanket rule that all business emails automatically qualify as a business record. See, e.g., Roberts Tech., Grp. v. Curwood, No. 14-5677, 2016 WL 2889166, at *2 (E.D. Pa. May 17, 2016). However, the emails may still be admitted as admissions of a party opponent.

At least one court has set out to clarify the business records exception as it applies to emails. In In re Oil Spill, the court considered whether several hundred emails could be summarily admitted into evidence under numerous hearsay exceptions, including FRE 803(6), or whether the emails had to be analyzed on an email-by-email basis. In re Oil Spill, 2012 WL 85447, at *1-2. The court rejected the idea that emails were "categorically admissible" and, instead, articulated six factors to consider in determining the admissibility of an email under FRE 803(6): (1) "whether the email was created contemporaneously with the sender's acquisition of the information within the email"; (2) "whether [] the composer of the email [] possessed personal knowledge of the information in the email"; (3) "whether the producing [party] had a policy or imposed a business duty on its employee to report or record the information within the email"; (4) whether the producing party had a policy "to use email to make certain types of reports or to send certain sorts of communications"; (5) whether the "custodian or qualified witness [] attest[s] that these conditions have been fulfilled" on an email-by-email basis; and (6) whether the opposing party challenged the emails' trustworthiness. In re Oil Spill, 2012 WL 85447, at *3; see also Mays v. United Ass'n Local 290 Apprenticeship & Journeyman Training Tr. Fund, 407 F. Supp. 3d 1121, 1142 (D. Or. 2019) (adopting the In re Oil Spill test); Rogers v. Or. Trail Elec. Consumers Coop., No. 3:10-CV-1337-AC, 2012 WL 1635127, at *9 (D. Or. May 8, 2012) (same).

A strict application of this test has resulted in the exclusion of email evidence. In Rogers, the plaintiff sought to admit certain emails that discussed the events that led to the disciplinary warnings filed against the plaintiff. Rogers, 2012 WL 1635127, at *8. The affiant in the case stated that the emails were "personnel records that [were] made and kept in the regular course of [the business's] regularly conducted business activity and [were] routinely relied on by [the business] in that business activity." Id. at *10. The court, however, rejected the emails because the affiant did not: (1) articulate whether the senders of the emails had personal knowledge of the events, (2) articulate that the business had a policy to send and retain emails, or (3) analyze the applicability of the emails on an email-by-email basis. Id. Other records, however, including "formal memoranda issued in conjunction with disciplinary actions and performance reviews pertaining to" the plaintiff that were authenticated by the affidavit using similar terms were admissible because they "carry a stronger presumption of accuracy and reliability than email, which is an informal mode of communication that is not inherently reliable." Id.

Other courts have not applied such a demanding test, and instead summarily stated that emails are admissible because they meet the requirements of FRE 803(6). For example, in Graham, the Western District of Missouri admitted an email from a bank employee discussing the status of a loan at issue in the case, finding that "[e]mail is an everyday, well-recognized, and common means of modern business communication, [] the content of the [] email is consistent with the FRE 803(6) factors[,] [n]othing about the email suggests untrustworthiness," and any part of the email that was hearsay-within-hearsay would be offered for admissible purposes. 2016 WL 9045739, at *2. Other courts have likewise admitted emails as business records. See Green, 2014 WL 2875850, at *2 n.1; Espedito Realty v. Nat'l Fire Ins. Co. of Hartford, 935 F. Supp. 2d 319, 325 n.3 (D. Mass. 2013) (admitting emails because the emails met the requirements of FRE 803(6)); Healix Infusion Therapy v. HHI Infusion Servs., No. 10 C 3772, 2011 WL 291160, at *1 (N.D. Ill. Jan. 27, 2011) (admitting emails because the emails were exact copies of the emails on a company server and were kept in the normal course of business); Houston v. Indep. Sch. Dist. No. 89, No. CIV-08-374-D, 2010 WL 988414, at *2 n.3 (W.D. Okla. March 12, 2010) (admitting emails pursuant to FRE 803(6)).

Depending on the jurisdiction in which you are litigating, litigants may need to take more proactive steps to establish that the emails are business records. For example, litigants can serve a Request for Admission (RFA) requesting its adversary to admit that certain emails are business records. Courts have found that such a request is proper under Federal Rule of Civil Procedure 26 and 36(a). See Little Hocking Water Ass'n v. EI Du Pont de Nemours & Co., No. 2:09-cv-1081, 2013 WL 1791083, at *4 (S.D. Ohio April 26, 2013) (allowing an RFA to establish that exhibit constituted a business record); Linde v. Arab Bank, PLC., No. CV-04-2799 (NG)(VVP), 2009 WL 8691096, at *11 (E.D.N.Y. June 1, 2009) (admitting and authenticating records that were requested to be authenticated in an RFA); Oakley v. McCabe, No. 06-4073, 2007 WL 2752175, at *1 (S.D. Ill. Sept. 21, 2007). And, of course, there are other hearsay exceptions that may apply to the emails, such as party statement under FRE 801(d)(2). Indeed, in our experience, courts have generally allowed the use of emails at trial to cross-examine witnesses who received or sent the email in question.

There is no escaping the importance of emails in the day-to-day operations of businesses and litigation. As a result, litigators need to be aware of the inquiries courts make to determine if an email constitutes a business record and alternative options to get emails admitted.

David Lender is co-chair of the global litigation department and a member of the management committee at Weil, Gotshal & Manges. Luna Barrington is a partner and Joseph Rausch is an associate in the firm's complex commercial litigation practice.