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Authenticating Emails at Summary Judgment

June 24, 2008

Authenticating Emails at Summary Judgment

Spam Notes, June 16, 2008

As we’ve mentioned in previous posts, it’s astonishing to see how many legal experts aren’t fully up-to-speed on the e-discovery process. According to this article, some lawyers assume that an e-mail can be turned in with a “to” and “from” line and expect it to be allowed into evidence. As this piece explains, authenticating e-mails at summary judgment is not that easy.

The depth and complexity of authentication varies with each summary judgment situation. Depending upon whether you’re in favor of or against summary judgment, who the documents are produced by and other questions, authentication standards differ. Whatever the case, unless you are exempt under the business records rule, there are some thoughts you should keep in mind when authenticating e-mails for summary judgment.

    • “Do you need a declaration from the IT person/records custodian or a declaration from the author of the e-mails?

    • Who are the e-mails being obtained from – are they forwarded from individual recipients and senders to the person gathering them, or are they accessed from a central location?

    • Are the e-mail addresses visible or obscured (how about other similar information – title/contact information)?

    • Are the e-mails altered in any way?”

Regardless of the situation, it’s prudent to always play it safe and assume your records need to be authenticated and litigation ready. Failing to do so may lead to a long and costly trial.

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