Discrimination action raises issues about authenticating a printout of an e-mail message, in Bell v. Rochester Gas & Elec. Corp., 540 F.Supp.2d 421 (W.D.N.Y. 2008).
A discrimination case highlighted some of the hurdles in authenticating a printout of an e-mail under FRE 901(a). The plaintiff offering the e-mail could authenticate how the printout was found but not that it was actually transmitted or received as he claimed.
In the case, plaintiff Bell filed an employment discrimination claim against his employer based on race and for taking leave under the Family Medical Leave Act. The employer claimed that Bell was suspended and then terminated after an investigation revealed that he altered company billing rate records, including records that belonged to his wife who was a company customer. The district court concluded that Bell had failed to state a discrimination claim or rebut the employer’s non-discriminatory reason for the termination. Before the district court, the plaintiff argued that his termination was pretextual.
In advancing the pretext claim, Bell relied in part on a printout of an e-mail that an employee found in her desk drawer with other papers obtained from a shared company printer. The printout indicated the e-mail was sent by the plaintiff’s supervisor to other company officials on the day that Bell was suspended. The e-mail message stated: “The jig has been lynched,” which was offered and understood to be a racial slur. The supervisor disclaimed authorship. An internal investigation by the company indicated that the purported e-mail had not been found on the hard drive of the supervisors or the listed recipients. Two outside firms, including a computer forensics company, also were unable to find evidence to suggest “that the purported e-mail was ever written, sent, received or printed by” the supervisor or listed recipients. Bell, 540 F.Supp.2d at 430.
The district court ruled that the plaintiff had failed to authenticate the e-mail printout. The employee who found the e-mail could testify about how she found it. However, there was no authentication that the printout was what the plaintiff claimed it to be: “the record of an e-mail message which was drafted and sent by [supervisor] Diamond to [other company officials] on the day that Bell was suspended, and printed by him at or near the time it was found by” another employee.
The district court noted that e-mails could be altered or fabricated:
The district court also dismissed an argument that it was possible the e-mail was created but was not saved on the company network:
“It is undisputed that e-mail messages can be easily fabricated, and a host of websites offer software and instructions for creating and/or sending faux e-mails. See e.g., http://www.deadfake.com; http://www.fakemailz.com. As such, a practical understanding of the available technology, both with respect to the fabrication of e-mails, and their preservation through electronic data, dictates that authentication of a printout as the hard copy of a bona fide e-mail message now requires something more than a bare conclusion that the printout ‘appears to be’ an e-mail message.”
Bell, 540 F.Supp.2d at 429 n.2.
“While correctly arguing that there is at least a theoretical possibility that electronic evidence of the e-mail could have existed and been entirely overwritten before the June 2, 2002 backup tape was created, Bell has offered no expert opinion or other evidence to suggest that this is the case, and admits that no electronic evidence of the purported e-mail has been located to confirm its purported origin. Furthermore, one need not be an expert in the field of computer forensics to recognize that if the e-mail had been sent by [supervisor] Diamond on May 21, 2002 but deleted and overwritten at some point within the next twelve days to eradicate any trace of its existence such that it would not appear on any of the named defendants’ hard drives or [company] Energetix’s daily backup tape for June 2, 2002, it would have been impossible for Diamond to have printed it from his computer ‘weeks or months’ after May 21, 2002, when [employee] DeJesus allegedly discovered it, commingled with papers she had just printed and removed from a copier the previous day.”
Bell, 540 F.Supp.2d at 430 (emphasis added). On the facts of the case, the district court granted summary judgment in favor of the company.
The Bell case underscores some of the issues that arise in authenticating electronic or internet evidence. For other examples concerning the limits of relying on internet materials and information in court, visit the prior posts that were part of this continuing series in the Internet Evidence category.
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