A recent case made it clear that under Federal Rule of Evidence 803(6) there was no “absolute right to admission of emails under the business records exception.” In Roberts Technology Group, Inc. v. Curwood, Inc., No. 14-5677, 2016 U.S. Dist. LEXIS 64538 (E.D. Pa. May 17, 2016) the court found that:

…the plaintiff had failed to provide “specific evidence” demonstrating the emails qualified as business records because there was no evidence that the emails were regular business records, were received by the plaintiff as part of its normal business practices, or had been retained pursuant to an email or electronic data policy.

On August 29, 2016 the Trial Evidence Committee of the American Bar Association Litigation Section published Kirsten R. Fraser’s (associate with Porter Wright Morris & Arthur LLP in Columbus, Ohio) article entitled “Admitting Emails under Rule 803(6) Is No Slam Dunk” that discussed a number of cases and advised the importance of:

  1. critically evaluating the content of emails before raising the business records exception, and
  2. providing foundational testimony through proper testimony at trial.

This article provides excellent advice given the critical care content found in eMails in the very case.