A Plaintiff sued after being a fraud victim in a “Nigerian advance fee scheme,” with emails allegedly from the Defendant’s CFO. The email addresses at issue did not have the domain name of the Defendant, but instead yahoo.com and privatelcientsubs.cjb.net. Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011).
The Plaintiff transferred $51,000 in the hopes of getting $19 million a Nigerian bank. Jimena, at *2. Litigation followed after the Plaintiff did not get $19 million.
The Defendant moved for summary judgment, claiming the Plaintiff failed to offer admissible evidence, specifically the email messages involving the wire transfers. Jimena, at *7.
The Plaintiff offered an affidavit that discussed how the Plaintiff had personal knowledge of the “emails since I [Plaintiff] read them immediately after I receive them. Since the wire transfer transaction is important to me I take care that records of email are not deleted from the time they were sent to me up to the present time.” Jimena, at *10.
The Court found the Plaintiff’s affidavit was insufficient to authenticate the emails messages with personal knowledge under Federal Rule of Evidence Rule 901(b)(1). The Court specifically held:
Plaintiff’s affidavit, by itself, is not sufficient authentication of the Standish E-mails. It does not provide any foundation that Plaintiff knows or had any prior communication with Clive Standish. There are no identifying characteristics that provide any foundation for linking the e-mails to Clive Standish. Plaintiff does not include an affidavit or deposition testimony from the purported author, Clive Standish, stating that he wrote the e-mails. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 777 (9th Cir. 2002) (concluding that letters and memoranda were not authenticated because Plaintiff did not submit an affidavit from the author stating that he wrote the letters and memoranda). Plaintiff also does not declare that he witnessed the writing of the Standish E-mails, only that he received them. See id. (“Mirch’s affidavit does not lay a foundation for Exhibit C. Mirch neither wrote the memo nor witnessed Geerhart do so, and he is not familiar with Geerhart’s signature.”). The Standish E-mails are not authenticated through personal knowledge under Rule 901(b)(1).
Jimena, at *11-12.
The Court further noted that the Plaintiff did not offer any deposition testimony of the purported author of the emails. Jimena, at *11.
The Court ultimately found the following:
Considering the totality of the characteristics, Plaintiff has not laid a sufficient foundation nor evidentiary reliability to justify admission of the Standish E-mails. The Standish E-mails were unsolicited, contain only publicly available, self-serving information, and do not contain any substantive or unique information that supports authenticity.
Jimena, at *17-18.
Bow Tie Thoughts
Electronically stored information has not changed the basic rules of admissibility. An affidavit that “I read the email” is by itself not enough to authenticate an email message by itself. Having past experience or familiarity with the sender’s address may help, but offering publically available information likely will not win the admissibility battle.
One strategy of authenticating an email message is to directly question the purported sender in a deposition or have them submit an affidavit. The questioning traditionally would ask if the witness recognized the exhibit, whether they wrote the email message and when they did so.
Where electronically stored information has changed the game is ensuring that the data was collected correctly, that no underlining metadata was changed and that the ESI was collected in a defensible manner.