Federal Evidence Review

Authentication based on e-mail address, automatic reply to sender, the messages indicated knowledge of matter, and use of nicknames; and testimony concerning phone conversations after e-mail messages were transmitted, in United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001)

An Eleventh Circuit case demonstrates how the context and content of e-mails can be used to authenticate its admission, under FRE 901(b)(4). The case also briefly addressed a hearsay challenge to the admission of the e-mails.

In the case, a professor falsely submitted papers nominating himself for a National Science Foundation award for an outstanding scientist or engineer, which included a $500,000 research grant. The nomination form purportedly was submitted by Dr. Yamada and listed three references. When the NSF contacted the listed nominator and references, the NSF learned that they did not nominate the defendant. The inspector general commenced an investigation.

During an interview, the defendant admitted nominating himself but claimed Dr. Yamada and Dr. von Gunten gave him permission to submit forms on their behalf. He conceded that Dr. Westrick had recommended him for another award and the defendant had modified the letter which was used for the NSF award. The facts of the case were compounded by the defendant’s subsequent efforts to contact witnesses and influence their testimony. During a deposition of Dr. Yamada in Japan, she indicated that “she received an e-mail stating that if she received a phone call from the NSF to ‘please tell good words about me.’ Yamada testified that she knew the e-mail was from Siddiqui because the name on the e-mail had Siddiqui's sender address, and it ended with the name ‘Mo’ which Siddiqui had previously told her was his nickname, and which he had used in previous e-mail.” Siddiqui, 235 F.3d at 1321. In a subsequent e-mail, he asked her to “ prepare a letter indicating that she had permitted Siddiqui to sign the nomination form on her behalf.” Siddiqui, 235 F.3d at 1321. He also made a similar request by telephone.

Similar testimony was provided by Dr. Von Gunten in a video deposition taken in Switzerland. He described receiving a similar e-mail from the defendant requesting that he tell the authorities that he had given the defendant permission to use his name. Dr. Von Gunten replied via e-mail, that he would tell the truth.

The circuit noted that FRE 901(b)(4) allows documents to be authenticated by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” As the circuit explained:

“In this case, a number of factors support the authenticity of the e-mail. The e-mail sent to Yamada and von Gunten each bore Siddiqui's e-mail address ‘msiddiquo @jajuar1.usouthal.edu’ at the University of South Alabama. This address was the same as the e-mail sent to Siddiqui from Yamada as introduced by Siddiqui's counsel in his deposition cross-examination of Yamada. Von Gunten testified that when he replied to the e-mail apparently sent by Siddiqui, the ‘reply-function’ on von Gunten's e-mail system automatically dialed Siddiqui's e-mail address as the sender. The context of the e-mail sent to Yamada and von Gunten shows the author of the e-mail to have been someone who would have known the very details of Siddiqui's conduct with respect to the Waterman Award and the NSF's subsequent investigation. In addition, in one e-mail sent to von Gunten, the author makes apologies for cutting short his visit to EAWAG, the Swiss Federal Institute for Environmental Science and Technology. In his deposition, von Gunten testified that in 1994 Siddiqui had gone to Switzerland to begin a collaboration with EAWAG for three or four months, but had left after only three weeks to take a teaching job. Moreover, the e-mail sent to Yamada and von Gunten referred to the author as ‘Mo.’ Both Yamada and von Gunten recognized this as Siddiqui's nickname. Finally, both Yamada and von Gunten testified that they spoke by phone with Siddiqui soon after the receipt of the e-mail, and that Siddiqui made the same requests that had been made in the e-mail. Considering these circumstances, the district court did not abuse its discretion in ruling that the documents were adequately authenticated.”

Siddiqui, 235 F.3d at 1322-23. The circuit also considered a hearsay challenge to the e-mail, which was readily rejected. The e-mails sent by the defendant were admissible as an admission of a party opponent, under FRE 801(d)(2)(A), and the e-mails “between Siddiqui and Yamada unrelated to the NSF investigation are non-hearsay admitted to show Siddiqui's and Yamada's relationship and custom of communicating by e-mail.” Siddiqui, 235 F.3d at 1322.

While testimony from a participant to an e-mail may serve as one common manner to authenticate an e-mail, the distinctive characteristics of the e-mail, including the content and context, may provide another option, as the Siddiqui case demonstrates.