Failure To Authenticate Email Evidence

Seventh Circuit highlights options to authenticate email evidence; in a civil rights action, the plaintiff was unable to authenticate emails and the circuit concluded that the district court properly excluded the email evidence in granting summary judgment for the defendants, in Devbrow v. Gallegos, 735 F.3d 584 (7th Cir. Nov. 1, 2013) (No. 13-1627)

Normally authentication under FRE 901 does not to impose a high hurdle. See, e.g., United States v. Gagliardi, 506 F.3d 140, 151 (2nd Cir. 2007) (noting that “[t]he bar for authentication of evidence is not particularly high”); see also United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012) ("Only a prima facie showing of genuineness is required; the task of deciding the evidence’s true authenticity and probative value is left to the jury."). However, the failure to authenticate email can result in the exclusion of significant evidence. The Seventh Circuit recently considered this issue.

District Court Proceedings

The case involved a civil rights action by a prisoner against prison officials. The prisoner claimed that he was denied access to the courts after his legal papers were destroyed in retaliation following a prior lawsuit. Plaintiff Devbrow offered an email sent by Gallegos “to the law librarian supervisor stating that Devbrow’s ‘stacks of legal personal property’ in his ‘bed area’ violated the prison policy and needed to be inventoried and moved to the ‘property room.’” According to the plaintiff, “this email confirmed retaliatory intent and the destruction of his property.” The district court struck the email because the plaintiff did not authenticate it. The district court granted summary judgment for the prison officials. On appeal, the plaintiff argued that the district court should not have excluded the email.

Seventh Circuit Analysis

The Seventh Circuit agreed with the district court that the email was not properly authenticated. Specifically, the plaintiff "did not show that either he or
anyone else saw Gallegos actually compose or transmit the email." Devbrow, 735 F.3d at 587.

As another option to authenticate the email evidence, the circuit noted that circumstantial evidence could have been offered, as it had in other cases. For example, authentication could be shown by the "email’s context, email address, or previous correspondence between the parties." Devbrow, 735 F.3d at 586-87 (citing United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000) (circumstantial evidence used to authenticate email), cert. denied, 533 U.S. 940 (2001); Fluker, 698 F.3d at 999 (after the government did not offer direct evidence to authenticate emails, it offered "sufficient" evidence "to authenticate the emails using circumstantial evidence")).


The Devbrow case provides a useful example of the consequences from the failure to authenticate emails. The case also highlights direct and circumstantial avenues for authentication. For more on the Siddiqui case, see Authenticating E-Mail Based On Contents And Context ; and for more on the Fluker case, see Circumstantially Authenticating Email Evidence.


Federal Rules of Evidence