Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information.
“Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration because the proponent cannot lay a sufficient foundation to get it admitted.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
Generally, authentication is not a difficult issue in civil litigation. First, it is a relatively low bar. Second, civil litigators have many ways to authenticate evidence, such as requests for admission, requests for production, interrogatories, depositions, and pretrial orders. Lorraine, 241 F.R.D. at 542 (“not a particularly high barrier”). In fact, some courts “have held that documents provided to a party during discovery by an opposing party are presumed to be authentic, shifting the burden to the producing party to demonstrate that the evidence that they produced was not authentic.” Id. at 552.
Although the authentication bar is low, “[t]he process is complicated by the fact that ESI comes in multiple evidentiary ‘flavors,’ including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.” Lorraine, 241 F.R.D. at 53-54. Thus, “there is no single approach to authentication that will work in all instances.” Id.
Boshea involved an employment dispute. Mr. Boshea alleged that his former employer, Compass Marketing, Inc., was required to make a $540,000 severance payment to him pursuant to a May 2007 agreement. He attached the alleged agreement to his Complaint. The attachment was undated and purportedly signed by Compass’s CEO, John White.
John White denied signing the agreement and Compass challenged its authenticity.
John White’s brothers, Daniel and Michael, were minority shareholders in Compass and had unrelated disputes with the company.
Discovery on Daniel revealed that he had provided a Compass email chain to plaintiff’s attorney. This is where the evidentiary rubber hit the road. Understanding each step of that email chain is important.
Step 1: The plaintiff, Mr. Boshea, asserted that this “Forwarded Email” had been sent from Daniel to his brother, Michael, on May 22, 2007, at 2:08 a.m.
Step 2: The plaintiff asserted that the Forwarded Email contained an email purportedly sent by brother John White to plaintiff Mr. Boshea on May 22, 2007, at 1:24 a.m. That email displayed a subject line stating: “Your agreement is attached. Not signed off by our G.C. bu [sic] should ne [sic] tomorrow.”
Step 3: The Court explained that the 1:24 a.m., email contained an attached draft of the agreement that formed the basis of plaintiff’s claims.
Thus, if genuine, it would appear that John had sent a draft agreement to Mr. Boshea telling him that it should be signed off the next day.
Step 4: The Court explained the metadata in the attached draft agreement.
Compass asserted that the Adams agreement was not authentic. Further, the amount of the severance on the Adams document was less than that on the Boshea exhibit.
Thus, if genuine, it would appear that John White created a draft agreement and sent it to Mr. Boshea in an email telling him it should be signed the next day; however, the draft did not contain the same severance amount as the agreement attached to Mr. Boshea’s Complaint.
Daniel and Michael were deposed. “Curiously,” in the Court’s words, Michael was not asked about the email or attachment.
However, Daniel was questioned and testified at deposition that he had been blind cc’ed on John White’s email, but admitted that he had “no specific recollection” of receiving it. When asked if he had the original email, Daniel said it “does not appear in my inbox by itself. It appears as part of the thread that I sent to Michael White.”
Additionally, John White testified under oath that he never sent the email.
The stage was now set. Compass moved to exclude the email and attachment.
Compass argued that no one ever produced the 1:24:33 a.m., email and that because “no person who purports to be a party to the alleged email is able to authenticate the alleged email…, it is not admissible.” Mr. Boshea responded that Daniel and Michael can authenticate the ESI. And, as noted previously, Daniel claimed that he had been blind cc’ed.
Compass argued that no native copy of the email had been produced. Mr. Boshea asserted that it is still online and will be produced in native form.
The Boshea Court engaged in an extensive discussion of authentication under Fed.R.Evid. 901. It specifically discussed the Court’s gatekeeper role under Rule 901 and explained that disputed facts concerning authenticity would be submitted to the jury. The Court wrote:
As the court in Lorraine stated, 241 F.R.D. at 540: “[I]f an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence.” It is not the Court’s obligation to determine whether the Forwarded Email is what plaintiff says it is, but rather whether there is sufficient evidence for a jury to decide that issue. [emphasis added].
The Court added: “From Daniel’s testimony, a jury could reasonably accept the authenticity of the Forwarded Email and the Attachment.” It then explained:
First, the Court wrote that: “Daniel, a witness with knowledge, stated that he helped plaintiff ‘find an email from John [White] to [plaintiff] from 2007.’ …. According to Daniel, he was blind copied on the original email….”
Second, it added: “Furthermore, Daniel denies making any alterations in the email…. Moreover, there is no evidence to suggest that the email is not authentic.”
Third, the Court dismissed the issue of Daniel not remembering the email: “The email is not inadmissible merely because Daniel has no specific recollection of receiving it. Indeed, given that the email was allegedly disseminated over a decade ago, it would be surprising if Daniel had remembered receiving it. In any event, at best, defendant raises a question about the weight the jury should place on the Forwarded Email and the Attachment.”
The Court held that Mr. Boshea made the prima facie showing required under Fed. R. Evid. 901.
 The circumstances of that disclosure are not described. Depending upon the context, so-called “self help” can present ethical and evidentiary issues. See “Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation.
 For additional information on the gatekeeper concept, please see Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence and Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104 .