When Emails Constitute Business Records — Absence of Testimony from Sender Not Preclusive

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A blog post on the Gregory P. Joseph law firm blog josephnyc.com website.

This blog post is a partial case summary providing information from an opinion on the case, Penberg v. HealthBridge Mgmt., 2011 U.S. Dist. LEXIS 119564 (E.D.N.Y. Oct. 17, 2011).

In this case the plaintiff objected to an email that was being offered as evidence, alleging that the email's foundation was not properly provided by testimony from the sender, and that the email was hearsay.

The opinion discusses why the email will be considered a business record, and not considered hearsay.  The opinion states, "According to the Second Circuit, "...admissibility under Rule 803(6) requires both that a memorandum have been 'kept in the course of a regularly conducted business activity' and also that it was the 'regular practice of that business activity to make the memorandum....'"

In addition the opinion provides further analysis, "Courts have held that conventional letters, memos, or notes are admissible under the business records exception if they are regularly made in furtherance of the employer's needs and not for the personal purposes of the employee who made them."

Of additional importance is the fact that this logic regarding business records can be applied to emails. The court opinion states, "Courts have applied a similar approach to emails. A party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record. Courts examine whether it was the business duty of an employee to make and maintain emails as part of his job duties and whether the employee routinely sent or received and maintained the emails."

In this particular case, although the email's author did not appear for a deposition, and was not allowed to offer testimony, another corporate official did provide enough testimony to make it clear that the email in question was part of a regular business practice of the company.  The email, along with the supporting testimony about the company's regular business practices, was held to be enough to allow the email evidence to be deemed admissible as a business records exception to the hearsay rule of evidence.