How do you authenticate “Read Receipt” auto-generated emails? Are the messages hearsay?
This issue was raised by a Defendant who challenged “Read Receipt” emails generated by one of the Defendants after reading an email from the Plaintiff.
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.
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Interesting. There are several ways that Read-Receipts can mean something different from what you think they mean. For example, they might not be generated when you might think they ought to if the user routinely reads his/her email in preview mode. And they might be generated when you think they ought not if (depending on software and settings) it’s really a Delivery-Receipt, not a Read-Receipt (and maybe only a server-level delivery at that). Or if the Read-Receipt is triggered by some automated workflow in the recipient’s environment. Read-Receipts are not especially trustworthy pieces of evidence because they are so system-dependent. In this circumstance, however, I would have expected it to be the Defendant’s burden to show why the Read-Receipt didn’t mean what the Plaintiff assumed it did. I don’t see how the Plaintiff could possibly have filed a technical affidavit explaining how this particular Read-Receipt was generated since it was presumably generated by the Defendant’s email system.