United States District Court, E.D. Kentucky, Central Division, Frankfort
Gregory F. Van Tatenhove, United States District Judge
case presents a recurring evidentiary concern in an age of
advancing technology. Simply put, may emails be authenticated
under the Federal Rules of Evidence by someone other than the
sender or recipient? This Court answered “yes” to
that question on several occasions throughout the course of
trial. What follows is a more detailed articulation of the
reasons why, as a supplement to the Court's rulings from
the bench. Also addressed is one of the more frequently used
substantive grounds for admission-co-conspirator statements.
Rule of Evidence 901 requires records to be properly
authenticated before they are admitted into evidence at
trial. To satisfy the requirement of authenticating a certain
record, the proponent of the record “must produce
evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed.R.Evid. 901(a).
The Sixth Circuit permits authenticity to be established
through the introduction of circumstantial evidence. See
United States v. Crosgrove, 637 F.3d 646, 658 (6th Cir.
2011). And Federal Rule of Evidence 901(b) provides a
non-exhaustive list of ways in which the requirements of Rule
901(a) may be satisfied.
the prevalence of email communication in this day and age,
case law in the Sixth Circuit regarding how Rule 901 relates
to the authentication of emails is sparse. A number of other
courts, however, have suggested the key factor in the Rule
901(b) list when it comes to email authentication is Rule
901(b)(4). That provision explains that records may be
authenticated by the introduction of testimony regarding
their unique characteristics: i.e., the “appearance,
contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances.” Fed.R.Evid. 901(b)(4). In fact, Rule
901(b)(4) is “one of the most frequently used to
authenticate email and other electronic records.”
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546
(D. Md. 2007).
example, the Eleventh Circuit found a number of emails to be
properly authenticated under Rule 901(b)(4) in United
States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000). In
Siddiqui, the Government sought to introduce emails
purportedly from Siddiqui, the defendant, through the
individuals who received those emails. 235 F.3d at 1322.
Siddiqui objected, but the Eleventh Circuit noted the
emails' contents, patterns, and distinctive
characteristics satisfied the authentication requirements in
Rule 901(b)(4). For example, the emails bore an email address
which included a portion of Siddiqui's name as well as
the university at which he was employed. Id. The
emails referred to the author as “Mo, ” a
nickname the Government witnesses could attribute to
Siddiqui. Id. at 1323. Further, the content of the
emails bolstered the idea that defendant Siddiqui was, in
fact, the sender, because the content included information
about which Siddiqui would know and because the Government
witnesses could testify to related phone conversations with
Siddiqui about the email content. Id. at 1322-23.
same rationale has been employed by other courts ruling on
the authenticity of both emails and text messages. For
example, the D.C. Circuit Court found emails to be properly
authenticated under Rule 901(b)(4) where the email addresses
at issue contained the name of the person connected to the
address; where the names of the senders or recipients of the
emails were frequently included in either the email content
or signature blocks; and where the email content involved
“discussions of various identifiable matters.”
United States v. Safavian, 435 F.Supp.2d 36 (D.C.
Cir. 2006). And in United States v. Fluker, the
Seventh Circuit found emails to be properly authenticated
even though neither the author nor anyone who saw the author
write the emails testified. 698 F.3d 988, 998-1000 (7th Cir.
2012). In that case, there was sufficient circumstantial
evidence to authenticate the emails under Rule 901(b)(4),
such as the email addresses at issue and the content of the
communication. See also United States v. Kilpatrick,
No. 10-20403, 2012 WL 3236727 (E.D. Mich. Aug. 7, 2012)
(noting the text messages in question had “distinctive
characteristics” under Rule 901(b)(4) such as distinct
auto-signatures, nicknames, unique PIN numbers, and
distinctive language patterns).
cases stand in contrast with two cases submitted by the
Defendants, where emails were properly found unauthenticated
under various Rules of Evidence, including Rule 901(b)(4).
For instance, in Jimena v. UBS AG Bank, Inc., an
Eastern District of California court excluded emails one
party sought to introduce through the email recipient.
See No. 1:07-cv-00367, 2011 WL 2551413 (E.D. Cal.
June 27, 2011). The court noted that there was no evidence
the recipient actually knew the purported sender or had prior
communication with the sender. Also, there were no unique
characteristics linking the received emails to the purported
sender. Id. Similarly, in In re Second Chance
Body Armor, Inc., the Western District of Michigan
Bankruptcy Court excluded emails because they were
“neither self-authenticating, authenticated by a
witness with knowledge, nor authenticated through any other
permissible means.” See 434 B.R. 502, 505
(Bankr. W.D. Mich. 2010). In that case, one party attempted
to authenticate certain emails through a witness with no
personal knowledge of the conversation, who had never seen
the email before, and who was not present at a meeting
described in the contents of the email. Id. The
Defendants emphasize the fact that the witness was not a
sender or recipient of the excluded emails. But a reading of
the Bankruptcy Court case in its entirety suggests that the
court's decision did not rest on the witness's lack
of participation in the communication but on the fact that
the emails could not be “authenticated through any
other permissible means, ” such as Rule 901(b)(4).
these cases specifically speak to whether an email may be
authenticated under Rule 901(b)(4) by an individual that is
neither a recipient nor a sender of the communication. But
the weight of the case law suggests participation in a
particular email is not a prerequisite to authenticating it.
The case law on the whole suggests that the key consideration
in email authentication is not simply whether the witness on
the stand was a sender or recipient of the email, but whether
the testifying witness can speak to the email's unique
characteristics, contents, and appearance. After all, Federal
Rule of Evidence 901 establishes a seemingly low bar for
authenticating or identifying evidence in the first instance,
and the characteristics set out in Rule 901(b)(4) are
particularly useful in demonstrating that an email is, in
fact, what it purports to be.
Court's rulings with regard to Government Exhibit 101B
clarify these principles. Exhibit 101B includes a series of
emails, the first to which Government witness Kris Kaiser was
a party. Ms. Kaiser testified that she performed billing
services on behalf of the Defendants' laboratory
PremierTox, and in this role she had reason to interact with
the five Defendants via email correspondence. During its
direct examination, the Government showed Ms. Kaiser a number
of emails that she either sent to or received from the
Defendants in the course of her Liberty Billing duties. And
the Government elicited testimony from Ms. Kaiser about her
familiarity with the Defendants' email addresses and
signature characteristics, particularly those of Brian
Walters and Bryan Wood.
section of Exhibit 101B including an email message between
Ms. Kaiser and Defendant Bertram was introduced without
incident, as Ms. Kaiser was a party to that communication.
But the Defendants objected to the Government's attempt
to introduce emails between Defendants Bryan Wood and Brian
Walters through Ms. Kaiser, because Kaiser was not copied on
those emails and presumably had never seen them before. After
reviewing the issue over the course of an evening recess and
as stated on the record, the Court concluded the authenticity
requirements were satisfied with respect to those emails.
Despite Kaiser's lack of personal participation in the
communication, she could speak to the authenticity of the
emails under Rule 901(b)(4).
example, Ms. Kaiser could verify the email addresses of both
Defendants as the addresses used by those men based on her
prior communication with them. The email addresses themselves
contained some identifying information, which Ms. Kaiser was
able to explain to the jury. The email address used by Brian
Walters, “email@example.com”, contains
his first name and his workplace. And the email addressed
used by Bryan Wood, “firstname.lastname@example.org”,
makes reference to his professional work as an Emergency
Medicine physician and the fact that he has eleven children.
Further, the emails from Dr. Wood contain an auto-signature,
“Bryan S Wood MD”, and those emails were also
signed “bw.” Kaiser testified that she knew Dr.
Wood typically signed his emails with those lowercase
initials. Surely these are the kinds of “contents,
substance, internal patterns, or other distinctive
characteristics” contemplated under Federal Rule of
Court notes that neither of those two Defendants ever
actually alleged the emails were not authentic. The
Defendants did not claim to have never seen or received the
emails, and they did not attempt to argue that someone else
(an administrative assistant, for example) had been using
their email addresses. Defense counsel's argument against
admissibility of the emails focused solely on the notion that
the Government had not satisfied Rule 901's requirements.
See Midwest Retailers Ass'n, Ltd. V. City of
Toledo, 582 F.Supp.2d 931, 934-35 (N.D. Ohio Oct. 14,
2008) (calling a similar approach to challenging the
admissibility of emails “hyper-technical and abstract,
” and noting the challenge was “undercut by the
lack of any allegation” that the emails were actually
the D.C. Circuit Court in United States v. Safavian
pointed out, the undersigned need not determine “that
the evidence is necessarily what the proponent claims, but
only that there is sufficient evidence that the jury
might ultimately do so.” 435 F.Supp.2d at 38 (citing 31
Fed. Prac. & Proc. Evidence § 7102 (1st ed.))
(emphasis in original). A jury considering the email exchange
between Defendants Wood and Walters could easily recognize
and accept it as such. And the Government could properly use
Kris Kaiser to authenticate the emails, as she had a personal
history of communicating with the Defendants via email and,
thus, could testify about the various distinctive
characteristics of the emails for purposes of Rule 901(b)(4).
notably, even if an email is properly authenticated, it still
must be substantively admissible. For this reason, the Court
has considered various other Rules of Evidence throughout the
trial to determine whether each email is properly admitted. A
number of emails, for example, were admitted over hearsay
objections as co-conspirator statements under Rule
801(d)(2)(E). For an out-of-court statement to be admissible
under that rule, the offering party must establish by a
preponderance of the evidence that (1) a conspiracy existed;
(2) the defendant was a member of the conspiracy; and (3) the
co-conspirator's statement was made during the course and
in furtherance of the conspiracy. United States v.
Kelsor, 665 F.3d 684, 693 (6th Cir. 2011); see also
United States v. Enright, 579 F.2d 980 (6th Cir. 1978).
Sixth Circuit case law notes that a statement is made in
furtherance of a conspiracy simply “if it was intended
to promote conspiratorial objectives;” the statement
need not actually further the conspiracy. See United
States v. Salgado, 250 F.3d ...