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emailsAs businesses and technology evolve, business documents and phone calls have been replaced by quicker and less formal methods of communication such as emails. Since emails are one of the most efficient and common forms of communication, it is no surprise that emails are important pieces of evidence in litigation.

The most frequent objection lodged against emails are hearsay objections under Federal Rules of Evidence (FRE) 801(c) and 802. Although emails sent by company employees usually qualify as admissions or fall under the “Records of Regularly Conducted Activity” hearsay exception or, as it is more commonly known, the business records exception, FRE 803(6), that is not always the case. See Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 Fordham L. Rev. 2285 (1996) (analyzing whether emails constitute a business record over twenty years ago).

FRE 803(6) has five components: (1) the record must be “made at or near the time by—or from information transmitted by—someone with knowledge”; (2) the record must be “kept in the course of a regularly conducted activity of a business”; (3) making a record must have been a “regular practice of that activity”; (4) the above three criteria must be shown by testimony or certification by a custodian or other qualified witness; and (5) the opponent must not show that the document is untrustworthy. FRE 803(6)(A)-(E).

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