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Hear -e, Hear –e: When E-mail Evidence is Thrown Out of Court as Hear S@y
Two recent 2002 court cases show the need for e-mail authentication. In one case, submitted e-mails might have swayed a North Carolina court to change its judgment, but the they could not be authenticated, and the plaintiff lost her case. In another court case in Illinois, an e-mail message was introduced as evidence but thrown out of court as inadmissible hearsay. Whether the e-mails were the critical pieces of evidence that could have turned the cases around will never be known. What is known is that those who want to use the e-mails felt that they were critical enough to be submitted, and that these e-mails were all thrown out.
In the North Carolina Case, the plaintiff employee, who was African American, had numerous conflicts with her supervisor over workload, training issues, and other concerns. She told the supervisor and others that she believed the conflicts might be due to "cultural differences" or racism. After she brought an administrative complaint of discrimination, she was told to refrain from attributing differences of opinion with her supervisor to cultural differences. She subsequently was fired for low productivity and inability to accept supervision.
This plaintiff provided the court with e-mails exchanged between various supervisors concerning her complaints. She believed that these e-mails would provide further support that the legitimate reasons given for her dismissal were a pretext for the defendants' retaliation against her once she filed her discrimination complaint. The court ruled that the e-mail evidence could not be considered because it had not been properly authenticated. The court stated that evidence submitted to the Court must be admissible at trial and therefore must be properly authenticated through a statement from a person or persons with personal knowledge of the origin. This did not occur.
In the Illinois court case, the plaintiff was suing her employer for retaliatory discharge. In this case it was the employer defendant who introduced an e-mail message as evidence. The plaintiff argued that the e-mail was hearsay and the court agreed, saying it constituted inadmissible hearsay.
These cases should have resonance with all companies that conduct day-to-day correspondence using e-mail. As the primary means of business communications, e-mail is fast, convenient, yet easily manipulated. The courts recognize all of this about e-mails, and will not accept e-mails unless there is a way to prove who communicated what, with whom, and when.
E-mails can be used for either the plaintiff or defendant, for the employer or employee. They are useless to either party if they are inadmissible. To preserve the integrity and authenticity of an e-mail audit trail, one needs to make the original tamper evident and be able to prove that the original content was created and sent at a specific point in time.
Trusted Time™ ExchangeProof™ is the solution for companies using Microsoft Exchange Server (Outlook) that understand the value of a provable audit trail for their internal and external e-mail communication. ExchangeProof provides the strongest evidence available of who sent an e-mail, what was sent, and when it was sent without any user intervention or overhead by combining organizational authentication technology with an accurate and tamper-resistant time signing system.
Once configured, ExchangeProof automatically signs all e-mail with accurate, secure, and official time. No training of end users or explanation on usage to anyone in a company is necessary. As far as employees and their correspondents are concerned, everything is business as usual.
[PRINTER FRIENDLY VERSION]
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