How do you authenticate “Read Receipt” auto-generated emails? Are the messages hearsay?
The Court rejected the argument that the “Read Receipt” email was unauthenticated hearsay. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., 2015 U.S. Dist. LEXIS 30583, 31-32 (E.D.N.C. Mar. 10, 2015).
The Court outright questioned whether a “Read Receipt” email was even a statement, which requires that an assertion is intended under Federal Rules of Evidence 801(a). The Court considered that even if an auto-generated “Read Receipt” email was a statement, it would be admissible against the Defendant because the email was created by the Defendant reading (or at least opening) the Plaintiff’s email message. This is an unique way of saying “Read Receipt” emails are party admissions under Federal Rule of Evidence Rule 801(d)(2)(A) and (D), because the message came from the Defendant’s work email for a matter he was supposed to investigate as part of his job function. Fox, at *30-31.
The Defendant argued the “Read Receipt” was not properly authenticated, because the Plaintiff failed to have a technical affidavit explaining how “read receipt” emails are generated for reliability. Fox, at *31.
The Court rejected the argument the Plaintiff needed to explain how Defendant’s auto-generated email was created. While there are times for technical affidavits, this was not one of them according to the Court. The Court explained that since the email was being admitted as a statement of a party opponent, the Court did not require a technical report to ensure the reliability of the email. Fox, at *31, citing Fed. R. Evid. 801(d)(2).
Bow Tie Thoughts
Authentication and hearsay are issues Courts deal with daily over electronically stored information. I am confident this was not the first Court to deal with the issue of “read receipt” emails, but it was the first I have seen.
I would argue the auto-generated message is not hearsay, because there is no statement from a human being. However, one could argue with a straight face such messages are statements, because the data generated from the time it was read and the sending of the message is an assertion of fact. That being said, finding the “read receipt” message was a party admission was a very clever argument.
If You Also Love Evidence
I have loved Evidence since law school. I am very happy to be doing a webinar with Guidance Software on the Admissibility of Electronically Stored Information on April 8, 2015, with Judge Matthew A. Sciarrino, Jr. of the Kings County Supreme Court, Kathleen F. McConnell, Esq., of Seyfarth Shaw LLP, and Chad McManamy, Esq., Vice President of E-Discovery and Assistant General Counsel for Guidance Software. If you would like to learn more and attend, you can register at here. I am really looking forward to the webinar.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.