Attorney Publication
Dec 1, 2009
eDiscovery Issues: Authenticating Email Produced in Discovery
This is the first in a series of articles about electronic discovery or “eDiscovery.” eDiscovery means a lot of different things to a lot of different people and each article will take on some discrete aspect of eDiscovery. We find that people often get caught up with eDiscovery issues and think that everything in the discovery practice has now changed. Truth be told, eDiscovery did not fundamentally change the way we do pre-trial discovery -- the basics are the same. What eDiscovery did do, however, is to create a wide range of issues that arise not from what the evidence “is” but instead by its “form.” Dealing 1with paper discovery is usually straight forward and comfortable for most of us-- dealing with electron electronic discovery s is not. So, in the spirit of focusing on basics in this first article of many to follow, we address fundamental issues relating to the authentication and admissibility of email and other forms of electronically stored information (“ESI”).
Whether because of a general unfamiliarity with electronically stored information or the large quantities of ESI typically involved in litigation, counsel often fail to meet the minimum required for authenticity when introducing electronic evidence – that the ESI is what it purports to be. Electronic records are easily manipulated and altered. Just because an email was produced by the opposition and has a particular name in the “From” or “To” fields, it cannot be assumed that the email actually is what it purports to be. As United States Magistrate Judge Paul W. Grimm commented in his landmark decision, Lorraine v. Markel American Ins, “counsel often fail to meet even this minimal showing when attempting to introduce ESI, which underscores the need to pay careful attention to this requirement. Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.”2
Courts nationwide, including Illinois, are taking notice of these issues and disallowing admission of electronic evidence that has not been properly authenticated. A recent opinion from the Illinois Appellate Court, Complete Conference Coordinators, Inc. v. Kumon North America,Inc. reminds Illinois practitioners that unlike other jurisdictions, Illinois does not have a civil procedure rule that “allow[s] the fact that a party produced a document in discovery to establish its authenticity.”3 In other words, the mere production of e-mails and other forms of ESI in discovery, without more, does not render them authentic in Illinois. Just like any other documents produced during discovery, emails and other forms of ESI must be properly authenticated to lay a foundation for their admission into evidence at trial, for use as exhibits in summary judgment or other pleadings.
In this case, plaintiff Complete Conference Coordinators Inc. (“CCC”) sued Katherine Lichter, its former officer, and Kumon North America Inc., a former client, alleging that Lichter induced Kumon to breach its contract with CCC shortly after Lichter left her job with CCC. Lichter filed a motion for summary judgment arguing that CCC failed to produce evidence on the elements of intentional and unjustified inducement of a breach of contract, and a subsequent breach by the other, caused by her conduct.
In response to Lichter's motion for summary judgment CCC attached several exhibits in support of its allegations. Among other documents, the exhibits included copies of emails between Lichter and Kumon produced by Lichter in response to various discovery requests. These emails did not appear in the record at any point prior to CCC’s response in opposition to summary judgment, and CCC’s response and accompanying documents included nothing to verify the authenticity of the email printouts.4
During oral argument on the motion for summary judgment, Lichter argued that there was no foundation to show that the email evidence proffered by CCC in its response was authentic, to which CCC simply responded that the “e-mails had been produced by defendant during discovery.”5 The trial court granted Lichter’s motion for summary judgment ruling that the email exhibits were inadmissible for lack of foundation and that, even if the emails were considered, CCC failed to present evidence that Lichter actively persuaded or otherwise encouraged Kumon to breach its contract with plaintiff.6 CCC then filed a motion for reconsideration, attaching an affidavit of CCC’s attorney attesting that the emails attached to its response brief were produced by Lichter during discovery. The trial court denied CCCs’s motion, but allowed CCC leave to file the affidavit and Lichter’s actual discovery responses with the court. CCC then appealed.
On appeal, CCC contended that the trial court erred in ruling that the email exhibits were inadmissible for lack of foundation arguing that the emails were established as authentic because defendant produced them in response to discovery requests. In affirming the trial court’s ruling, the Appeals Court made clear that, unlike other jurisdictions, Illinois has not enacted civil procedure rules or otherwise adopted the position that production of a document alone will establish its authenticity.7 In Illinois, more is required. The proponent of documentary evidence must lay a foundation to demonstrate that the document is what its proponent claims it to be in order for that document to be introduced into evidence.8 As the court observed, CCC could have easily established the proper foundation by asking Lichter to verify the authenticity of the emails while she was under oath at her deposition.9 Alternatively, although not specifically noted by the court, CCC could have filed Requests to Admit directed at the defendants, with the emails attached.
This case servers as an excellent example that the same basic principles of authentication and admissibility apply to electronic records as they do to any other type of documentary evidence. While many practitioners may not be as familiar or comfortable in dealing with electronic records as they would be with paper, we must not forget that the same fundamental principles apply regardless of the form of the evidence.
1 241 FRD 534, 542 (D MD 2007)
2 2009 WL 2520520, 3 (Ill App Ct 2d Dist 2009)
3Id at 2
4 Id
5 Id
6 Id at 3
7 Id at 2
8 Id at 3