Federal Evidence Review

In contract dispute, bills of lading “produced from the same electronic information that was generated contemporaneously” were properly admitted as business records; the copying and inclusion of another e-mail which was forwarded to the defendant was admissible as a statement by a party opponent by manifesting an adoption of the information in the original e-mail, in Sea-Land Service, Inc. v. Lozen Intern., LLC, 285 F.3d 808 (9th Cir. April 3, 2002) (No. 00-57058)

As part of a continuing series on electronic evidence and Internet evidence, we have reviewed cases involving the admissibility of electronic and Internet evidence. A Ninth Circuit case considered the admissibility of bills of lading as a business record and the copying of an e-mail which was forwarded to the defendant.

The case involved a dispute concerning the delivery of a shipment under the terms of a contract. The parties disagreed concerning the terms on the international bills of lading and whether the Carriage of Goods by Sea Act applied, among other issues. On summary judgment, one of the plaintiff’s Manager in Documentation provided a declaration which attached bills of lading as exhibits. The exhibits were admitted under the business records hearsay exception, under FRE 803(6).

A second issue concerned the admissibility of an internal company e-mail authored by one Sea-Land employee and forwarded to Lozen by a second Sea-Land employee. The district court excluded the e-mail based on a failure to identify who was the author.

Bill Of Lading

The circuit affirmed the admission of the bills of lading as business records. First, the records were “made or transmitted by a person with knowledge at or near the time of the incident recorded.”

Sea-Land Service, 285 F.3d at 819 (citing United States v. Miller, 771 F.2d 1219, 1237 (9th Cir.1985) (listing elements to admit a business record)). The circuit noted:

“[A]lthough the physical documents were not generated when the parties contracted for the shipment of Lozen’s grapes, they were produced from the same electronic information that was generated contemporaneously. For the purposes of Rule 803(6), ‘it is immaterial that the business record is maintained in a computer rather than in company books.’ United States v. Catabran, 836 F.2d 453, 457 (9th Cir.1988) (citation and internal quotation marks omitted). Rule 803(6) allows for the admission of a ‘data compilation, in any form,’ so long as the compilation meets the requirements of the rule. Id.”

Sea-Land Service, 285 F.3d at 819 (footnote omitted). Additionally, the “information on the bills of lading is kept in the course of Sea-Land’s regularly conducted business activity,” satisfying the second element. Sea-Land Service, 285 F.3d at 819. The manager was a qualified witness since she was familiar with the terms and conditions of the bills of lading and the business processes in which they were created.

Copied Internal Company E-mail

The circuit reversed the exclusion of the company e-mail, which was admissible under FRE 801(d)(2) as an admission by a party opponent.

“The original e-mail, an internal company memorandum, closes with an electronic ‘signature’ attesting that the message was authored by ‘Mike Jacques,’ Sea-Land’s ‘Rail Reefer Services Coordinator’ at the time the e-mail was written. Jacques is listed as one of Sea-Land’s employees in Exhibit 9, a letter from Sea-Land to Lozen that the district court did admit into evidence. The original e-mail also appears to concern a matter within the scope of Jacques’ employment.”

“More importantly, however, Jacques’ original e-mail was forwarded to Lozen by Laurie Martinez, a second Sea-Land employee. She copied the entire body of Jacques’ internal memorandum into her e-mail and prefaced it with the statement, ‘Yikes, Pls note the rail screwed us up….’ Martinez thereby incorporated and adopted the contents of Jacques’ original message, because her remark ‘manifested an adoption or belief in [the] truth’ of the information contained in the original e-mail. Further, there is evidence in the record that Martinez was one of Sea-Land’s employees at the time her message was written and that the contents of the e-mail were within the scope of her employment. Her admission (including the incorporated portion) therefore conforms to the requirements of Rule 801(d)(2)(D).

Sea-Land Service, 285 F.3d at 821 (citations omitted). The circuit reversed the district court grant of summary judgment and remanded the case since the exclusion of the e-mail cause prejudice to the plaintiff in showing “that Sea-Land’s railroad agent committed an unreasonable deviation and thus creates an issue of fact on that issue.” Sea-Land Service, 285 F.3d at 822.