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64 Fordham L. Rev. 2285 (1995-1996)
When the Postman Beeps Twice: The Admissibility of Electronic Mail under the Business Records Exception of the Federal Rules of Evidence

handle is hein.journals/flr64 and id is 2301 raw text is: WHEN THE POSTMAN BEEPS TWICE: THE ADMISSIBILITY OF ELECTRONIC MAIL UNDER THE BUSINESS RECORDS EXCEPTION OF THE FEDERAL RULES OF EVIDENCE Anthony J. Dreyer* INTRODUCTION Imagine you are the plaintiff's attorney in a copyright infringement suit. You allege that the defendant copied certain printing fonts owned by your client, and then sold them to a software manufacturer for use in their latest software package. During the discovery process, you learn that the software manufacturer routinely evaluates all the fonts it plans to use for potential copyright infringements. You also learn that most of the software manufacturer's business records are computerized. Accordingly, you subpoena the software manufacturer's computer files in the hopes of finding support for your claim. In reviewing the files, you find the smoking gun-an internal electronic mail (e-mail)1 message from a manager whose job it was to review the defendant's product and report her findings to her superior. In the message, the manager asserts that the fonts produced by the defend- ant are strikingly similar to your client's. The e-mail, dated only two days before the software went into production, also lists a signifi- cant number of similarities between the two products. You consider the impact of the e-mail on your case, and wonder how you may use this evidence in court. Because you wish to admit the e-mail for the truth of what it asserts-that the fonts share a number of striking similarities-you recognize that the e-mail's admis- sibility will probably be challenged on the grounds that it is hearsay. Because the software manufacturer is not party to the suit, the e-mail is not admissible as an admission by a party opponent.2 You are confi- dent, however, that you will be able to admit the e-mail under the business records exception to the hearsay bar.3 After all, the man- * I am grateful to Daniel C. Richman, Associate Professor, Fordham University School of Law, for his comments on prior drafts of this Note. I would also like to thank my fiancde and my family for their encouragement and support while writing this Note. 1. As used in this Note, the term e-mail is broadly meant to encompass many different forms of electronically transmitted text. See infra notes 15-16 and accompa- nying text. 2. See Fed. R. Evid. 801(d)(2). 3. See Fed. R. Evid. 803(6). Rule 803(6) excludes from the hearsay bar. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, 2285

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