Skip Page Banner  
Skip Navigation

Effective Use of Email Messages in Witness Examination

Tuesday, October 8, 2013

By T. Ray Guy1

T. Ray Guy is a Litigation partner at Weil, Gotshal & Manges LLP and head of the Firm's Litigation practice in Dallas. Admitted in New York and Texas, he has more than 30 years of experience litigating and trying civil litigation in courts around the country, including complex class actions, business disputes, breach of fiduciary duty claims, and technology cases.

A. INTRODUCTION

Most trial lawyers think of e-mail communications in terms of the burdens that their existence creates, or exacerbates, during the discovery process. There is the initial difficulty of explaining to a company executive that, no, it will not suffice for the officer to go through his or her e-mail inbox and personally select the e-mail messages that he or she deems relevant for production; instead, a vendor will make an image of the executive's hard drive, and reviewing attorneys will determine which messages and other electronically stored information (“ESI”) are to be made available to the other side. Next, there is the process of developing a list of search terms and parameters, and perhaps negotiating additions and revisions with the requesting party's counsel.

The actual eyes-on review of documents now typically involves a step that none of us would have envisioned twenty years ago: teams of associates, or contract attorneys, reviewing e-mail messages and other ESI on monitors, in a room in the United States or Mumbai or Bangalore, making relevancy designations with keystrokes instead of physical placement in a folder. Privilege logs, routinely demanded by the requesting party, now have multiplied in size and scope as well as in the number of judgment calls to be made as to whether to produce or withhold, and if the latter, how to describe the document. And the opportunities for motions to compel and for hearings on contested discovery motions have likewise multiplied.

However, in focusing on discovery burdens resulting from the existence of e-mail communications, lawyers often miss the concurrent and countervailing benefits they afford for trial preparation and presentation. The emergence of e-mail as a primary vehicle for business communications is arguably the most important technical and cultural development affecting trial practice during the past several decades.

What we overlook when bemoaning the ubiquity of e-mail communications is their enormous utility in providing a contemporaneous written history of disputes. Electronic mail, when preserved, provides an as-it-happened record of events that would in the past have been recorded by only the most conscientious note-takers, fastidious diarists, or prolific correspondents.

Thus, e-mail communications have great potential for proving the chronology of events. Communications that formerly remained only in memory once the phone was replaced in the cradle now are preserved in their original form. Proof that once would have been available only through letters or personal diaries, and even then only sporadically and from a few of the participants therein, is now available for examination and use at trial in virtually every piece of commercial litigation.

A trial lawyer's ability to use e-mail communications as a tool for proof requires familiarity with the Rules of Evidence--in particular, the definition of hearsay, exceptions to the proscription of hearsay evidence, and the rules concerning authentication of documents. The effective use of e-mail communications at trial requires careful planning of examinations, both direct and cross, so as to skillfully weave e-mails into the telling of the story through the witness. It also requires familiarity and coordination with the courtroom presentation system.

B. AUTHENTICATION AND ADMISSIBILITY: GETTING THE E-MAIL MESSAGE INTO EVIDENCE

The persuasive power of e-mail messages is grounded in a truism that no one has ever heard--because I made it up--but that every juror would instantly understand: People change their stories. Documents don't.

Memories fade between the time of the event and the day of trial. Witnesses become convinced that something happened in a particular way because, after all, it must have happened that way. Sometimes people lie, even under oath. For these reasons, and more, the story a witness presents at trial often differs from the one he or she would have told, at or near the time of the event, in the absence of any incentive to testify in a particular way.

But from the moment prose is committed to paper--or to electronic memory for later printout--it doesn't change (absent forgery or other alteration). Hence, the contemporaneous written word describing an event or evidencing a state of mind carries power stronger than that of oral testimony.

And the written word is persuasive regardless of whether you're using it to confront a hostile witness whose oral testimony is contradicted by the text of the e-mail message, or to buttress the testimony of a friendly witness by demonstrating its consistency with a contemporaneous memorialization. The applicable rules of evidence are a bit more tricky in the latter situation, but workable nonetheless.

I'm assuming here that the e-mail message(s) in question genuinely reflect the event being described or the sender's state of mind. That isn't always the case, of course. An e-mail message can be deliberately self-serving, drafted with care with litigation in mind, with the purpose of revising or at least coloring, the record. But in general, e-mail messages aren't composed with the care of--and, thus, generally provide a more trustworthy record than--make-a-record letters.

So how do you get them into evidence?

1. Authentication

Printed copies of e-mail messages, like any other documents, must be properly authenticated.

a. Testimony by the Sender or a Recipient. Obviously the easiest way to authenticate a printout of an e-mail message is the testimony of the sender or a recipient (including a cc or bcc recipient)--a “Witness with Knowledge,” under Rule 901(b)(1) of the Federal Rules of Evidence--whether by deposition or live at trial.

If the testimony is from a recipient of the message--or, for that matter, from a hostile witness who is identified in the message as its sender--proving the message (or overcoming post-admission arguments against its authenticity) may require testimony concerning the security of the sender's or organization's e-mail system under Rule 901(b)(9) (see below).

b. Testimony Concerning the E-Mail System, Process, and Servers. In the absence of testimony from the sender or a recipient, or if the sender disclaims the message, the authenticity of the message can be proven by appropriate testimony concerning the e-mail system or systems in question, under Federal Rule 901(b)(9) (“Evidence About a Process or System”), which requires evidence “describing a process or system and showing that it produces an accurate result.”

The requisite testimony may be supplied by an expert witness, under Rule 702, or--especially if the e-mail message is internal, sent and received entirely within an organization's e-mail system--an information systems employee or officer of the organization, testifying as a fact witness or a lay opinion witness under Rule 701. If the purported sender isn't available or denies sending the message, the testimony will need to establish the reasons for believing that an e-mail sent from a particular address was in fact authored or forwarded by the person in question, addressing among other things the security of the system and access to the purported sender's computer or other device.2

If the e-mail message in question was produced in discovery by the party opposing its admission, that fact alone typically clears the authenticity hurdle.3

Often testimony concerning the process that is sufficient to satisfy Rule 901(b)(9) will overlap with or be subsumed in testimony that the e-mail message constitutes a business record under Rule 803(6), discussed below.

2. Admissibility

After the printed e-mail message is authenticated, there remain hurdles to its admission into evidence. Even if the author of the message is on the stand authenticating it and admitting having sent it, the message remains hearsay, as a statement “that the declarant does not make while testifying at the current trial or proceeding …” under Rule 801(c)(1), if it is being “offered in evidence to prove the truth of the matter asserted in the statement.” Rule 801(c)(2). It doesn't suffice that the witness reiterates the statement, word for word, from the witness stand; the e-mail message itself remains an out-of-court statement, and if offered to prove the truth of the matter asserted, it's inadmissible hearsay absent an applicable exception. So how do you make it admissible?

a. Not Offered for the Truth. Often the utility of an e-mail message doesn't turn on the truth, or falsity, of what's contained within its text. As mentioned earlier, e-mail messages provide a superb means of establishing the chronology of a dispute; you may not care whether the assertion is true, and indeed you may have reason to offer an opponent's or adverse witness's e-mail message while making clear that you dispute its veracity. For example, the message may simply demonstrate that at a crucial point in time, the opposing party was on notice of a position being taken by your client.

An e-mail message, like any other written or oral communication, isn't hearsay if it isn't being offered for the truth of its contents. But an assertion that this is the basis for admissibility can't be a subterfuge, and you obviously need to be able to articulate the non-hearsay reason why the message is relevant and what it tends to prove--and be willing to live with a limiting instruction informing the jury that the message can't be considered for its ostensible truth.

b. Opposing Party's Statement. Generally known under pre-Rules common law as “admissions of a party opponent,” this concept is now codified in Rule 801(d)(2) as simply “An Opposing Party's Statement.” Rule 801(d)(2) sets forth five alternative bases on which an e-mail message attributable to your opponent or its representative will be considered not hearsay, and thus will be admissible, including that the message evidences a statement that “was made by the party in an individual or representative capacity” (Rule 801(d)(2)(A)) or “was made by the party's agent or employee on a matter within the scope of that relationship and while it existed” (Rule 801(d)(2)(D)). For that matter, Rule 801(d)(2) at least holds out the possibility of admitting into evidence an e-mail message made by someone not associated with the party if it was accepted and retained without comment--as “one the party manifested that it adopted or believed to be true.” (Rule 801(d)(2)(B)).

Rule 801(d)(2) doesn't explicitly require that the e-mail message constitute an “admission,” as the common law required, but if it's relevant under Rule 403--and if you're seeking its entry into evidence--there will presumably be something about the e-mail that's inconsistent with some aspect of your opponent's position at trial.

c. Declarant's or Witness's Prior Statement. In a similar vein, an e-mail message that was authored or adopted by a testifying witness and that is consistent with his trial testimony, doesn't constitute hearsay and is admissible under Rule 801(d)(1)(B) if offered to rebut a claim of recent fabrication or of testimony shaped by improper influence or motive.

d. Business Records. The business records (or “shop book”) rule is codified in Rule 803(6) of the Federal Rules of Evidence (“Records of a Regularly Conducted Activity”). Since it falls within Rule 803's set of hearsay exceptions applicable regardless of whether the declarant is available, it's ideally suited for documents for which you don't have testimony from a sender or recipient.

Courts have repeatedly ruled that e-mail messages can constitute business records under Rule 803(6) or corresponding state law rules of evidence.4 The application of Rule 803(6) to e-mail messages does trigger some “unique problems of recent vintage.” U.S. v. Cone, 714 F.3d 197, 219 (4th Cir. 2013). For example:

Who is the “custodian or other qualified witness” (Rule 803(6)(F))? Ordinarily (and to the extent the opposing party really wants to contest such matters) the custodian will be a person within the organization responsible for, or otherwise familiar with, its e-mail system and servers. Nowadays, however, the general acceptance of e-mail as a means of communication probably renders rare the circumstances in which opposing counsel will insist on trying the patience of jury, judge, or arbitrator by requiring detailed background testimony concerning e-mail technology.


“The general acceptance of e-mail as a means of communication probably renders rare the circumstances in which opposing counsel will insist on … requiring detailed background testimony concerning e-mail technology.”

Can an incoming e-mail message, from a sender not affiliated with the organization, nevertheless become a business record if incorporated into the organization's files? Conceivably a company's procedures could include the incorporation of incoming messages into its own records. Further, however, if an incoming message is thereafter forwarded by an employee of the organization under circumstances indicating adoption of its contents--a so-called “adoptive admission”--the message is admissible under Rule 801(d)(2)(B).5

Under what circumstances is an e-mail message “kept in the course of a regularly conducted activity”? Courts seem less than uniform in their application of this requirement. For example, e-mail messages sometimes are used to make, and thereafter transmit, notes of a telephone conversation. One court, in ruling such an e-mail message admissible, observed that, “[I]t is reasonable that those in business meetings often keep notes of those meetings in the regular course of business …” and that in the instance then before the court, “[N]othing in the notes or testimony indicates that the conversation strayed in any way beyond a strictly business discussion.”6 Other courts appear to read a more rigorous standard into Rule 803(6), with e-mail messages not falling within Rule 803(6) unless the employer required the employee to make and maintain e-mails as part of his job duties.7

Is a snarky e-mail message concerning fellow employee (or opposing party) really part of the regular activity of the organization? It can be, if the court concludes that the message relates sufficiently to the sender's designated responsibilities--and, again, courts vary as to how rigorously they apply the Rule 803(6) standard on this point. If the message is sufficiently problematical and the adverse comment arguably tangential, there's always the possibility of arguing that prejudice outweighs probative value under Rule 403.

There are other issues, of course, that would justify an entire article about e-mail communications as business records.

e. Present Sense Impression. “A statement describing or explaining an event or condition, made while or immediately after the declarant observes it …” is admissible under Rule 803(1), regardless of whether the declarant is available to testify. This exception has been applied to justify the admission of, for example, an e-mail message concerning a just-finished telephone conversation with a representative of the opposing party.8 This exception seems peculiarly adaptable given the dynamics of e-mail communication--virtually universal and immediate access to a computer, tablet, or smartphone, with which to inadvertently record for posterity what would in past times have existed only in non-electronic memory.

f. State of Mind. An e-mail message illustrating its sender's “then-existing state of mind … or emotional, sensory, or physical condition …” is admissible under Rule 803(3)--again, regardless of whether the sender is available to testify--in a case in which it is relevant.

C. E-MAIL MESSAGES AS TESTIMONIAL SUPPORT BUT NOT NECESSARILY ADMISSIBLE

There are at least two circumstances in which an e-mail message may be effective to bolster oral testimony but may not be admissible into evidence.

1. Recorded Recollection

An e-mail message commonly evidences what the sender knew about an event at a point in time in the past--concurrently with sending the message--but she may not now recall the events she recorded in the message. Under those circumstances, Rule 803(5) provides that the message is not excludable as hearsay, provided that it was written while the event was fresh in the witness's mind and accurately reflected her knowledge at that time. However, Rule 803(5) also limits the use of the e-mail under those circumstances: it “may be read into evidence but may be received as an exhibit only if offered by an adverse party.”

2. Refreshed Recollection

An e-mail message may also serve to refresh the memory of a testifying witness. Witness recollection is taught in trial advocacy classes as a choreographed time-of-trial routine, in which the witness is asked whether he recalls a particular event or aspect thereof; the witness replies that he cannot; he is then asked whether anything might refresh his memory and replies in the affirmative; the witness is handed a document or object, reviews it, and hands it back to the questioner, who then asks whether the witness's memory is refreshed; and of course, the witness testifies that it is and proceeds to answer questions on the subject.9

I doubt that many readers of this article have ever conducted such an examination in an actual trial or arbitration proceeding. If the apparently-forgetful witness is hostile, he likely will decline to agree that an e-mail message has refreshed his memory; if he is a witness within your control, the refreshing of his memory will likely have occurred during a pretrial witness preparation session. Under the latter circumstance, Rule 612 provides the adverse party's counsel with the option of causing the admission into evidence of any portions of the message that relate to the witness's testimony. But as with recorded recollections, the option belongs to the opponent, meaning that Rule 612 can't be counted on for admissibility if your purpose is to bolster oral testimony with a contemporaneous e-mail message.

D. APPLYING THE RULES: EFFECTIVELY USING E-MAIL MESSAGES FOR PROOF
1. Admissibility as the Ultimate Goal

If you care about nothing more than getting the e-mail message into evidence, the game is over once you satisfy the appropriate rule justifying admission. The e-mail message may, for example, establish an important date on the dispute timeline; or you may just want to use it in closing argument or point it out in post-trial briefing in a bench trial or arbitration.

Ordinarily, however, if the e-mail message is of any utility, you'll have reason to want to highlight its contents during the examination of one or more witnesses.

2. E-Mail Messages in Examination of Opposing Party or Adverse Witness

Obviously an e-mail communication that contradicts the opposing party's position or is inconsistent with an adverse witness's trial testimony is an extraordinarily useful tool for cross-examination. The Rules address the use of such messages in two ways.

a. Opposing Party's Statement. As set forth above, the Federal Rules make this one easy. An e-mail message that meets Rule 401's relevancy threshold, in that it tends to make a material fact more or less probable, is admissible if it is properly attributable to the opposing party. But to get the contents of the message before the trier of fact, the e-mail needs to be woven into the examination of a witness who is the sender, a recipient (including a cc or bcc recipient), or someone who was contemporaneously made aware of the communication, or who is otherwise connected with its subject matter.

Again, the Rules don't require that it be an admission, or an inconsistent statement, but the fact that you want to highlight the message in a witness examination presumably means that it's inconsistent with the position of your opponent. And the power of the e-mail message is magnified if it is indeed inconsistent with the opposing party's trial position, in that its contents both support your contentions and undermine the credibility of the opponent.

b. Witness's Inconsistent Statement. If the witness is not the adverse party (or an employee or other person authorized to speak for the adverse party), the use of the witness's e-mail message inconsistent with his trial testimony requires that (1) the adverse party's attorney, on request, be shown a copy of the message (Rule 613(a)); (2) the witness be given an opportunity to explain the statement; and (3) the opposing party have the opportunity to examine the witness concerning the statement. None of those requirements is an insurmountable, or even significant, hurdle to the use of an inconsistent statement in an e-mail message to impeach the witness. But if the witness isn't a party (or someone whose statement binds the party), the statement remains hearsay, and your opponent is generally entitled to a limiting instruction informing the jury that the contents of the e-mail are to be considered only as they reflect on the witness's credibility and not for the truth of the statements.10

3. Buttressing the Testimony of a Friendly Witness

In my view, e-mail communications are no less impactful when used in direct examination to support the trial testimony of your witness. The trier of fact may be suspicious that your witness's testimony has been shaped by counsel or shaded, deliberately or subconsciously, by post-event, time-of-trial motives or influences. An e-mail message or other document that is consistent with the trial testimony and that was generated and sent before the dispute arose--or even after it arose, but before suit was contemplated or filed--is an effective tool for buttressing the credibility of that testimony.

a. Consistent Statements. As mentioned above, Rule 801(d)(1)(B) provides that such an e-mail message or other document is admissible if offered to rebut a claim of recent fabrication or of testimony shaped by improper influence or motive. But I would argue that the charge of recent fabrication can be express or implicit, direct orindirect--meaning if your witness's trial testimony on the point is material to your case, the opponent's case posture in and of itself should justify admission of a prior e-mail message consistent with that testimony.

Suppose, for example, that in a merger-related shareholder class action, you're defending members of the board of directors of the acquired company against claims that they breached their fiduciary duties in negotiating the merger at an inadequate price per share. Days before the company's board voted to recommend the merger, one of your clients sent an e-mail to his fellow board members, as follows:

Speaking for myself, I'm very pleased with the process that management and the board have conducted in considering the acquisition proposal from Amalgamated Rockcrushers & Pulverizers Inc. Our financial adviser did a thorough evaluation of the value of our company, and I'm convinced that the offer is a fair one and that our stockholders will be receiving more than full value for their shares.

As you present your client on direct examination, your attempt to question him concerning the e-mail message draws the objection that the plaintiff hasn't claimed that the witness's testimony was recently fabricated or improperly shaped. But the complaint alleges that management and the directors failed to conduct a thorough evaluation because of personal considerations, such as the prospect of immediate change-of-control vesting of stock options. You respond, therefore, that the plaintiff's allegations constitute a de facto accusation that your client's testimony--that he voted to approve the merger for all the right reasons--was fabricated for trial, and the e-mail message should be admitted under Rule 803(d)(1)B).

So, what's the ruling? I like your chances of getting the e-mail message admitted, although I can't cite a case in support. But I haven't experienced much opposition from counsel to the admission of such messages.

b. Refreshed Recollection and Recollection Recorded. The effectiveness of an e-mail message used either to refresh the witness's recollection, or to memorialize a past recollection, is lessened because--as I mentioned earlier--there's no guarantee that the document itself will ever be in evidence. But it's better than nothing; a contemporaneous piece of paper, even if it isn't actually seen by the jury, undoubtedly helps dispel the notion that the witness's version of the facts could have been concocted the week before trial.

4. Permissible 'Speculation' Based on E-Mail Message

Suppose you've managed to get an e-mail message authored by your witness into evidence, but the witness doesn't actually remember sending it. Perhaps the e-mail message qualified as a recorded recollection, under Rule 803(5); or a business record of his organization under Rule 803(6); or perhaps it was even admitted by pretrial stipulation. But your witness is honest to a fault and won't testify that she now remembers what she meant at the time. Can she testify as to what she must have meant, based on her practice in initiating or responding to e-mail communications?

The standard trial response to such a question is to object that it calls for speculation. But the rule against speculation is actually intended to prevent a witness from speculating as to what someone else was thinking at a specific time.11 I would suggest that it is not impermissible speculation for a witness to testify, from her personal knowledge of her own habits and practices, as to what she must have been thinking when she wrote a particular message, regardless of whether she can remember it specifically at time of trial.

So how would it work? Assume that you are defending a client who routinely supplies the plaintiff with Model D Widgets in 10-widget lots. Three years ago your client, for the first time, sent a shipment of 10 Model C widgets to the plaintiff; the order was oral, for a rush shipment, and there was no written purchase order. The plaintiff attempted to incorporate the widgets into machines being manufactured for an important customer on a tight deadline. Because the Model C Widgets didn't fit the machine assemblies, the plaintiff lost the order; blames your client for its loss of a customer relationship and is suing for lost profits and consequential damages.

The trial testimony has shown that the order was placed by a newly-promoted purchasing director; he testified adamantly that he ordered Model D Widgets. Your witness is your client's former shipping manager, who filled the order in question. On the day it shipped, she sent to the plaintiff's purchasing director an e-mail message with the following subject line: “SHIPPING TODAY: 10 MODEL C WIDGETS.” The body of the message was brief: “As discussed, I am today sending by overnight delivery 10 Model C Widgets; the tracking number is ABC1234XYZ. Let me know if you don't receive them by close of business tomorrow.” Attached to the e-mail message was a PDF of your client's invoice for the order. Your witness took another job a week after the order was shipped--before the plaintiff first registered a belated complaint that its purchasing director actually ordered the usual Model D Widgets. The witness filled dozens of orders every month, and several every year for the plaintiff, and has no memory of this particular order or of sending the e-mail message. The printed e-mail message is already admitted into evidence as Defendant's Exhibit 12. The examination might proceed like this:

Q. Ms. West, do you recall writing and sending Exhibit 12?

A. Honestly, no, I don't.

Q. So that means that you don't recall typing the subject line, “SHIPPING TODAY: 10 MODEL C WIDGETS”?

A. That's correct; I don't.

Q. Do you nevertheless think you know why you would have typed that subject line?

A. Yes, I do.

Q. Why would you have typed it that way?

PLAINTIFF'S COUNSEL: Objection, Your Honor; the question calls for speculation.

DEFENSE COUNSEL: Your Honor, I'm not asking Ms. West to speculate concerning someone else's thinking or motive; I'm asking her about her belief about her conduct. That's not speculation, and I can establish the basis for her belief with a few more questions.

THE COURT: Let me hear that basis before I rule.

Q. Ms. West, on what do you base your belief as to why you would have typed that particular subject line?

A. My practice was to type something generic like “Your Order shipping today” in the subject line. On Exhibit 12, I obviously departed from my usual practice.

Q. What about the fact that you typed the subject line in all caps? Do you have a belief as to why you did that?

A. Yes.

Q. And on what do you base that belief?

A. As a matter of course, I don't type anything in an e-mail message in all caps.

DEFENSE COUNSEL: Your Honor, her answer to my question will be based on her knowledge of her usual practice in confirming orders by e-mail, and it won't constitute speculation.

THE COURT: I'll allow it; the objection is overruled.

Q. Ms. West, why did you type that particular subject line, and do so in all caps?

A. The fact that I specifically referred to Model C Widgets must have been intended to call attention to the fact that he ordered Model C Widgets instead of Model D Widgets. When I typed the subject line in all caps, I must have done that to call attention to the fact that Mr. Morrison had ordered, and I was shipping, something different from his usual order.

Q. The text of your message begins, “As discussed, I am today sending … 10 Model C Widgets.” Do you recall typing that introduction?

A. No, honestly I don't.

Q. Do you nevertheless think you know why you would have worded it that way?

A. Yes, I do.

Q. And what is that belief?

A. That I wanted to make it clear that he had ordered Model C Widgets.

Q. And on what do you base that belief?

A. I didn't use any such words as a matter of course. The only reason I can think of as to why I might have departed from my usual practice was to emphasize that he had ordered Model C Widgets instead of the Model D Widgets that his company had ordered dozens of times before.

Q. Ms. West, the testimony here at trial has established that the plaintiff knew within two days that it had received the wrong parts from your company, and it lost its order almost immediately after that. Do you have a belief as to why the plaintiff didn't complain more quickly?

PLAINTIFF'S COUNSEL: Objection, your honor; this time he's asking the witness to speculate as to what someone else was thinking. That clearly calls for speculation.

THE COURT: Sustained.

 

E. CONCLUSION

Properly used, an e-mail message can undercut inconsistent trial testimony and--perhaps more importantly--buttress the credibility of testimony that is consistent with the electronic record. A collection of such messages can frame the chronology of a dispute and take the jury back in mind from the time of trial to the time when the controversy arose. Good trial lawyers see past the discovery headaches and spend appropriate time in trial preparation planning for their admissibility and effective use.

1 The author gratefully acknowledges the editing and research assistance of Paige Holden Montgomery, Casey Burton, and Vivian Lee.

2See e.g., “Authentication of Electronically Stored Evidence, Including Text Messages and E-Mail,” 34 A.L.R. 3d 253 (2008).

3See e.g., Pierre v. RBC Liberty Life Ins., Civ. A. No. 05-1042-C, 2007 BL 289606, at *1-2 (M.D. La. July 13, 2007).

4See DirecTV, Inc. v. Murray, 307 F. Supp. 2d 764, 772 (D.S.C. 2004); Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, Civ. A. No. H-06-1330, 2008 BL 98139, at *12-13 (S.D. Tex. May 8, 2008); Pierre v. RBC Liberty Life Ins.(M.D. La. July 13, 2007). For state court opinions see D.B. Zwirn Special Opportunities Fund L.P. v. Brin Inv. Corp., 945 N.Y.S.2d 556, 556 (N.Y. App. Div. 2012); Thomas v. State, 993 So.2d 105, 107 (Fla. Dist. Ct. App. 2008).

5In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, MDL No. 2:10-md-02179-CJF-SS, 2012 BL 54760, at *5 (E.D. La. Jan. 11, 2012).

6Insignia Sys. Inc., News Am. Mktg. In-Store, Inc., Civil No. 04-4213 (JRT), 2011 BL 28726, at *8 (D. Minn. Feb. 3, 2011).

7See, e.g., Canatxx Gas Storage Ltd., 2008 BL 98139, at *12-13; In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, MDL No. 2:10-md-02179-CJF-SS, 2012 BL 54760, at *6 (E.D. La. Jan. 11, 2012) (“Essentially, there must be a showing that the e-mail at issue was not sent or received casually . . . .”).

8Canatxx Gas Storage Ltd., 2008 BL 98139, at *14.

9 As an oft-quoted judicial opinion notes, anything can be used to refresh recollection.

It may be a line from Kipling or a dolorous refrain of 'The Tennessee Waltz’; a whiff of hickory smoke; the running of the fingers across a swatch of corduroy; the sweet carbonation of a chocolate soda; the sight of a faded snapshot in a long-neglected album. All that is required is that it may trigger the Proustian moment. It may be anything that produces the desired testimonial prelude, 'It all comes back to me now.’

 

Baker v. State, 371 A.2d 699, 705 (Md. Ct. Spec. App. 1977).

10 MCCORMICK, EVIDENCE § 34 (7th Ed. 2013).

11See, e.g., Bd. of Trs. v. Towers, Perrin, Forister & Crosby, Inc., 191 S.W.3d 185, 193-94 (Tex. Ct. App. 2005).

To view additional stories from Bloomberg Law® request a demo now