In today’s world, email is essential to the functioning of most businesses. Employees use email to communicate about work tasks. Businesses use email to send receipts or invoices to customers. Customers use email to send complaints or requests to businesses. But are emails business records within the meaning of the business records exception to the rule against hearsay?
In short, although emails may qualify as business records under Rule 803(6), they will rarely so qualify. This is because emails will often fail to satisfy two of the foundational elements of the business records exception.
A recent decision from the Sixth Circuit— United States v. Daneshvar, No. 18-1101, 2019 WL 2297455, at *2 (6th Cir. Apr. 29, 2019)—illustrates the difficulties that emails will have in qualifying as business records.
I. Rule 803(6) and the Rationale Behind It
Before getting into the facts of Daneshvar, it makes sense to start with a brief overview of Rule 803(6) and how the foundational requirements of the rule make it difficult for emails to qualify as business records.
Under Rule 803(6), “[a] record of an act, event, condition, opinion, or diagnosis” is admissible for the truth of the matter or matters asserted within the record if the proponent of the record can show that the record satisfies three elements: (A) the record was “made at or near the time” of the relevant act/event/condition etc. by “someone with knowledge” or “from information transmitted by . . . someone with knowledge”; (B) the record was “kept in the course of a regularly conducted activity of a business”; and (C) the record was made as “a regular practice of that [business] activity.” Fed. R. Evid. 803(6)(A)-(C).
The first and third foundational requirement are worth focusing on here, as they are the proverbial hills on which most admissibility arguments regarding emails will die.
(A) The record was “made at or near the time” of the relevant act by “someone with knowledge” or “from information transmitted by . . . someone with knowledge”
This foundational element contains two components: (i) a knowledge component (someone, either the maker of the record or someone else, must have had personal knowledge of the act/event/etc. that is reflected in the record) and (ii) a timeliness component (the record must be made around the same time as the act/event/etc. that is being documented in the record).
With respect to the knowledge component, the proponent of an email must be able to show that the supplier of the email’s content—whether that person be the author of the email or someone the author communicated with—had personal knowledge of that content. This component has resulted in emails failing to qualify as business records. See, e.g., Ira Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 20 (1st Cir. 2014) (holding that district court erred in admitting emails under the business records exception because, among other things, “the record contains no evidence that Walker (the author of the email) had the requisite personal knowledge of” the content contained within the email).
With respect to the timeliness component, the proponent of an email must show that the person who supplied the content contained in the email—whether that person be the author of the email or someone the author of the email communicated with—conveyed that content close in time to observing it. Emails, likely because they are a generally more informal and sporadic means of communication, will often fail to clear this hurdle. See Ira Green, Inc., 775 F.3d at 20 (holding that district court erred in admitting emails under the business records exception because “the 2012 e-mails described what supposedly occurred in 2011” and “[t]his lack of contemporaneity puts the exhibit outside the compass of the business records exception”).
(C) The record was made as “a regular practice of that [business] activity”
Rule 803(6)(C) requires the proponent to show that the business had a “regular practice” of making the record at issue. Fed. R. Evid. 803(6)(C). This element is focused on whether the making of the record was routine or systematic. Fed. R. Evid. 803(6) advisory committee’s note on 1972 proposed rules (noting that “[a]bsence of routineness raises lack of motivation to be accurate.”).
Again, emails will often be unable to clear this hurdle. See Versata Software, Inc. v. Internet Brands, Inc., No. 2:08-CV-313-WCB, 2012 WL 2595275, at *1 (E.D. Tex. July 5, 2012) (“The essence of [the employee’s] testimony was that e-mails reporting on events pertinent to the business would be sent at a time convenient to the sender if the sender regarded the subject matter of the e-mail as worthy of communicating to others. That evidence reflects the use of internal communications for information-sharing purposes based on instances of perceived need and convenience, not a system for preparing and retaining business records as a regular and routine practice.”) (emphasis added)).
II. The Sixth Circuit Upholds the District Court’s Exclusion of an Email
In Daneshvar, the government had charged the defendant, who was a doctor, with conspiracy to commit health care fraud and healthcare fraud. In short, the doctor-defendant was accused of, among other things, conspiring with a company called “Mobile Doctors” to order excessive diagnostic tests for his patients.
As part of his defense, the doctor-defendant wanted to offer an email sent by an employee of Mobile Doctors. The defendant argued that the email supported his theory that Mobile Doctors kept doctors like himself in the dark regarding the company’s fraudulent scheme. The email read:
“[W]e don’t want [the doctors] asking too many questions about billing etc. [L]et[’s] just keep them in the dark, we cover their liability, let us cover ourselves and that’s the end of it! We do not brow beat them with mundane details and we give creative control for the treatment of [patients] unless, it[’s] something that will harm the [patient] or us. I think we should operate with [standing orders for tests] the same way. They are not stupid, they know we make money off of tests[,] but they also know that it is helping the [patient], that’s why they agree to it. Sometimes too much can be harmful. Where did I hear that before? Oh yeah, it was you!”
The doctor-defendant argued that this email was admissible under the business records exception to the rule against hearsay. The district court held that the email did not qualify as a business record and excluded it.
Ultimately, the Sixth Circuit affirmed the district court’s exclusion of the email. In so doing, the Sixth Circuit focused on the “regular practice” element of the business records exception. The Court wrote:
“Of course, an email can qualify as an admissible record of a regularly conducted business activity as long as the proponent satisfies the requirements of Rule 803(6). But, it was no abuse of discretion for the district court to find that those requirements were not met here. We affirm the district court’s holding that the email ‘was not a business record [admissible under Rule 803(6)], but rather a form of conversation’—that is, a one-time discussion regarding what to tell doctors—as this holding was based on no clearly erroneous factual finding or erroneous interpretation of law.”
III. Takeaways
In my view, the Sixth Circuit’s analysis is sound. The central component of the business records exception is reliability. And as the Advisory Committee to the Federal Rules of Evidence has noted, the “reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.” Fed. R. Evid. 803 advisory committee’s note to 1972 proposed rules.
With respect to emails, they are generally not prepared in the rote, systematic fashion in which most business records are prepared. Rather, business employees often use email sporadically as a convenient means of communication. A court will often be able to rule out an email as a business record by asking whether it was the regular practice of a business to send an email with the precise content contained within the email. In the Daneshvar case, such a question would have ruled out the email in question as a business record, as the email was an employee’s one-off opinion of the company’s relationship with doctors.
Still, if you are looking to offer the content of an email for its truth, you should consider other potential exceptions to the rule against hearsay. For example, an email may qualify as an opposing party’s statement under Federal of Evidence 801(d)(2).
You can read the full Daneshvar opinion below.
And for other cases addressing this issue, consider:
United States v. Cone, 714 F.3d 197, 220 (4th Cir. 2013) (“[I]t would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those e-mails are business records falling within the ambit of Rule 803(6)(B).”);
Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443 (9th Cir. 1994) (observing that “E-mail is far less of a systematic business activity than” the monthly computer inventory printouts that the circuit had previously held qualified as business records);
Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 621 n.163 (S.D.N.Y. 2008) (“An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule.”);
In re Oil Spill by the Oil Rig DEEPWATER HORIZON in the Gulf of Mexico (hereafter “In re: Deepwater Horizon”), on Apr. 20, 2010, No. MDL 2179, 2012 WL 85447, at *3 (E.D. La. Jan. 11, 2012) (“The individual elements required to trigger the exception’s applicability show that there is no categorical rule that emails originating from or received by employees of a producing defendant are admissible under the business records exception.”).
