In litigation alleging employment discrimination under Title VII of the Civil Rights Act of 1964, the Court decided evidentiary issues over email and a blog post. Jones v. Sansom (D.Conn. Nov. 10, 2023, No. 3:21-cv-00442 (VAB)) 2023 U.S.Dist.LEXIS 202170.
The number of motions in limine sound like an epic miniseries ranging from “law of the case,” relevance and undue prejudice, hearsay, and disclosure requirements for a treating physician. Focusing solely on hearsay, the evidence at issue was a blog post and related email. Jones, at *29.
Hearsay is an “out-of-court statement” that is offered “for the truth of the matter asserted.” Fed. R. Evid. 801(c). There must be an exception for hearsay to be admissible. Fed. R. Evid. 802.
The hearsay statements at issue were 1) a blog post by one declarant and 2) an email with a petition by another. The Plaintiff deposed the second declarant and intended to call him as a witness.
The Court stated that deposing a witness and calling them to testify at trial does not make the contents of an out-of-court statement admissible. Jones, at *31, citing U.S. v. Abrams, 543 F. Supp. 1184, 1192 (S.D.N.Y. 1982). However, the Defendants’ knowledge of the proffered evidence and a failure to act could go to the question of whether the Defendants allowed a hostile work environment. As such, the Court would allow the email and petition to not be admitted for their truth, but whether there was a hostile environment that the Defendants failed to remedy. This would be a question for the jury to decide. Jones, at *31-32.
The blog post was not offered to show conduct that required the Defendants to intervene. It was an opinion piece that called out the Defendants for racially disparate treatment. The Court held that was hearsay without an exception. The blog post would not be allowed as evidence, however, if the author had personal knowledge of disparate treatment, he could testify to such information. Jones, at *32.
Bow Tie Thoughts
Evidence must be admissible. Just because there are dozens of email (or in some cases, millions), does not mean those emails are admissible. Emails, text messages, blog posts, comments on social media posts, on their face contain out of court statements offered for the truth of the matter asserted. Attorneys should consider hearsay when conducting document review to identify prospective trial exhibits. Is the content of the message being offered for the truth of the matter asserted? Is there an exception, such as a party admission, present sense impression, excited utterance, statement of future intent, or another other exception to be admissible? Asking those questions in advance will make trial preparation easier if there is motion practice.