Civil & criminal courts regularly decline to admit all sorts of
documents into evidence, including email, if they cannot be properly
authenticated.  Such decisions seldom make it into an appellate record
because it is an abuse of discretion standard that is difficult to
overturn and evidentiary issues are almost always a collateral matter
(fraud and forgery cases being the obvious exception.)

Moreover, most of the big email cases cite to the failure to preserve
and produce responsive and material email, leading to sanctions.

I have had some small personal experience where email either wasn't
admitted, or wasn't even proffered because of authentication problems.
On the other hand, the evidentiary aspect is very often stipulated away
because everyone agrees the email is what it purports to be.


William Kellermann, Esq.
Director, Corporate Legal Systems
CT Summation
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www.ctsummation.com
 
CT Summation 
425 Market Street, 7th Floor
San Francisco, CA 94105
Phone: 415-442-0404 
Fax: 415-442-0403
Technical Support: 800-786-2778

-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Roach, Bill J.
Sent: Monday, February 13, 2006 6:45 AM
To: [log in to unmask]
Subject: Re: [RM] E-mail management and retention

>>What the court wants to know is what was originally said, to whom,
when, was it received, where did it go from there, etc. (regular audit
trail stuff).<<

Not sure I buy into the line of thought this is appears to be leading
to.  If I understand the premise correctly, email records may be looked
at by the court with askance because they contain a bundle of multiple
posts, with each additional post offering an exponential opportunity for
someone to make changes to previous content.  Makes for a very
interesting theory, however, over the past several years, I do not
recall a single incidence where the court has ruled against admission of
emails or offered instructions that their value as evidence was
diminished because of the multiple opportunities for revision.  On the
other hand, in an hour or so, I can find references to a hundred cases
where email was used as the evidentiary bomb that sealed the deal. 

Bill R

Bill Roach, CRM
Enterprise EDMS Coordinator
State of North Dakota
ITD/Records Management
701-328-3589

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