Over the past few decades, the use of email for business communication has grown dramatically. As a result, parties have increasingly come to rely upon email as potential evidence for summary judgment and trial. Although emails may be objectionable as hearsay, parties are more frequently seeking to admit them under Rule 803(6) of the Federal Rules of Evidence, known as the “business records exception” to the hearsay rule.
Rule 803(6) provides that a “record,” even if hearsay, may be admissible if the following elements are met: (a) it was made at or near the time by, or from information transmitted by, someone with knowledge; (b) it was kept in the course of a regularly conducted activity of a business or organization; (c) making the record was a regular practice of that activity; (d) all these conditions are shown by the testimony of “the custodian” or “another qualified witness”; and (e) “neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.”1 The rationale for admitting such records is that employees have a duty and incentive to accurately record facts and events in the course of their employment and there is a general trustworthiness of records that are regularly made and maintained.
