Failure to Authenticate Email Leads to Dismissal of Case
By Angela Foster, Litigation News Contributing Editor – February 25, 2014

The failure to authenticate material electronic evidence may result in its exclusion and lead to the dismissal of the case. In Devbrow v. Gallegos, the U.S. Court of Appeals for the Seventh Circuit recently affirmed a district court’s order rejecting consideration of an email that was not authenticated, which resulted in the case’s dismissal. The case serves as a reminder to litigators to plan ahead to ensure they have either direct or circumstantial evidence sufficient to authenticate email evidence.

The Plaintiff-Prisoner’s Retaliation Suit
In Devbrow v. Gallegos, Devbrow, a prisoner, filed a pro se complaint against prison officials alleging that they confiscated and destroyed his legal materials in retaliation against his complaint about the unsanitary conditions at the prison. Subsequent to filing the lawsuit, the prison officials informed Devbrow that he had created a fire hazard by stacking papers by his bed and that a portion of the papers would have to be removed and stored in the prison property room.

Devbrow alleged that some of his papers that were taken to the prison property room were destroyed, including irreplaceable documents that his attorney needed to respond to a motion in another pending lawsuit. Devbrow asserted that the alleged destruction of his documents violated his right to access to the courts because it impaired his attorney’s ability to prosecute his pending case.

As evidence of retaliatory intent and the destruction of his property, Devbrow attempted to introduce an email purportedly sent by one of the defendants to the law librarian supervisor explaining prison policy requiring staff to inventory the papers and have them moved to the property room. The defendants objected to the admissibility of the email on the ground that it was not properly authenticated.

The district court struck the email holding that Devbrow failed to satisfy Federal Rule of Evidence 901 because he did not show that either he or anyone saw the prison officials compose or transmit the email. Devbrow claimed because he received the email from the prison, Rule 901 only required him to show that the evidence was what he claimed it was—an email from the defendants. The district court disagreed and found that Devbrow failed to authenticate the email. As such, the court concluded that Devbrow did not offer admissible evidence that would allow a finding that the officers confiscated Devbrow’s legal materials to retaliate against and granted summary judgment for defendants.

The Seventh Circuit affirmed the district court’s ruling. The appellate court held that while the most direct method of authenticating is a statement from the author or an individual who saw the author compose and send the email, circumstantial evidence may help to authenticate an email. The court noted that Devbrow did not present any direct or circumstantial evidence to show that the email was authentic. The court noted examples of evidence to substantiate authentication of emails include an email’s context, email address, or previous correspondence between the parties.

Authenticating Emails
“The trial court may have been faced with a situation where the alleged email contained no information to suggest that the email was created by one of the defendants,” states Ian H. Fisher, Chicago, IL, cochair of the ABA Section of Litigation’s Trial Evidence Committee. “Because Devbrow represented himself pro se in this matter, he probably was not aware of other options for authenticating email evidence,” notes Fisher. “Circumstantial evidence like the use of a specific email address and domain name—facts only known to the purported author—can be used to authenticate an email,” explains Fisher. “Personal references within the email suggesting that the purported author did, in fact, write the email can indirectly authenticate an email,” adds Fisher. Further, “if an email was properly harvested and produced in electronic form, its metadata can provide additional circumstantial evidence of authenticity,” says Fisher.

Attorneys must also know their jurisdiction, advises Fisher. “For example, some courts consider the production of an email in discovery by the party against whom it is to be used as sufficient circumstantial evidence needed to authenticate the email,” notes Fisher. “Some courts have found that each email in a chain is a separate communication and subject to separate authentication and admissibility requirements. Thus, attorneys should be prepared to authenticate every step of a chain,” says Fisher.

Think Ahead
“Admissibility problems associated with emails extends to all electronically stored information,” says Joan K. Archer Kansas City, MO, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee. She cautions litigators to think ahead to ensure evidence is admitted at trial. “Beginning with the initial review of documents through discovery, attorneys must focus on how to get evidence in or keep evidence out—authentication is key,” advises Archer.

“Although authentication is a fairly low burden, you don’t want to realize you have a problem after discovery closes,” says Fisher. “At least a month before discovery closes, consider whether the key emails have been authenticated,” suggests Fisher. “In a deposition, having the sender acknowledge that he or she likely sent an email or the recipient admit that he or she likely received it should be sufficient absent some other evidence suggesting that the email may be a fraud, ” advises Fisher.

Fisher suggests that a request for admission pursuant to Rule 36 of the Federal Rules of Civil Procedure is an inexpensive means of authentication. “By asking the opposing party to admit the genuineness of an email, you can resolve authenticity issues well ahead of trial,” explains Fisher. “If the opposing party improperly denies an email’s genuineness, you can seek the fees you expend in establishing it,” adds Fisher.

Keywords: authentication, Federal Rule 901, email, evidence, Federal Rule 36, admission, admissibility, request for admissions

 
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