Corporate Emails, No Matter How Routine Or Frequently Exchanged, Do Not Necessarily Comprise Corporate Business Records
Alain Leibman writes:
The business records rule, FRE 803(6), has in some quarters become so loosely observed that its terms for qualifying certain records as admissible have been taken as nearly rendered unnecessary by the expectation that courts will not insist on rigorous observance. But a recent district court case serves as a reminder to trial lawyers that some judges actually read the rule and expect counsel to meet its terms.
In multi-district litigation venued in the Eastern District of Louisiana as a result of the Deepwater Horizon spill in the Gulf of Mexico, the court in preparation for trial sought to have the parties organize the preliminarily present for resolution various evidentiary issues. In re Oil Spill by the Oil Rig Deepwater Horizon, 2012 WL 85447 (E.D. La., Jan. 11, 2012). At issue were approximately 300 emails produced by the corporate defendants, which the plaintiffs contended were collectively admissible under Rule 803(6) because of their regular creation as part of the companies’ business activities and because of courts’ “increasingly … liberal view of emails as business records.”
The district court rejected the plaintiffs’ argument in favor of collective admissibility, insisting instead on a searching application of the elements of the Rule, which requires that the subject record be made at or near the time of the event it described; by or from a person with knowledge of the event; that the record be kept in the course of a regularly-conducted activity of a business; and that creating the record was a regular practice of that activity. As a result, the court pointed out, each email would have to be reviewed to determine, among other things, if it was created contemporaneously with the events recorded therein; whether the email’s author had personal knowledge of the information asserted in the email; whether the producing entity had a corporate policy imposing a duty on employees to report or record the information; and whether corporate policies dictated that emails be the required form of information reporting or storage. “[I]t is not enough to say that as a general business matter, most companies receive and send emails as part of their business model.”
The need for individual email analysis meant that “there is no across-the-board rule that all emails are admissible as business records.”
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)
