Ca. Litig. Rev. 2019

Civil Procedure

By Khai LeQuang and Ric Fukushima

Emails, Hearsay, and the Business Records Exception

Not long ago, emails were a casual form of communication, which people used only occasionally for business purposes. Today, however, emails have become the norm, and not the exception, in business. They are the most common way employees communicate at work, and virtually all companies conduct some aspect of their business through emails. Almost everyone has a smart phone, and many of those individuals are employees who use their phones constantly to access their business emails in today’s fast-paced, around-the-clock work environment. But those same employees may also use their work email addresses to send personal emails or casual or non-routine emails about work, or even pass along their favorite jokes and memes. It is for these reasons that neither courts nor legislatures have adopted a hearsay exception for emails or categorically accepted emails as presumptively trustworthy, which is fundamental to any hearsay exception.

Trial attorneys know emails can be powerful evidence at trial. This article is not about the situation where a party seeks to admit emails written by the opposing party. Those emails are generally admitted under the party admission exception to the hearsay rule. This article addresses the situation where a party seeks to admit emails from its own business files to prove the facts stated or recorded in those emails. Those emails are more difficult to admit into evidence, yet they can be very helpful to the party seeking to admit them. Consider the following two evidentiary scenarios in a trial on Plaintiff Paul’s discrimination and wrongful termination lawsuit against his former employer, Defendant Company.

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