Legal Intelligencer: When Hearsay Meets ESI: Navigating Evidence Rules in the Digital Age

Understanding the concept of hearsay and its application to ESI evidence is crucial for practitioners to navigate the complexities of evidentiary rules effectively.

In the March 21, 2024 edition of The Legal Intelligencer, Edward T. Kang wrote “When Hearsay Meets ESI: Navigating Evidence Rules in the Digital Age.”

Evidence plays a pivotal role in shaping the outcome of cases. One evidentiary ruling could affect the outcome of the case. Most relevant evidence is typically deemed admissible after a proper foundation has been established. Upon authentication, the Federal Rules of Evidence dictate the exclusion of hearsay evidence. In the digital age, electronically stored information (ESI) provides crucial evidence. ESI is any data stored or transmitted electronically, including emails, documents, images and messages. In 2006, the Federal Rules of Civil Procedure introduced e-discovery amendments, which formally defined ESI and recognized its discoverability.

These amendments encompass all forms of computer-based information and are designed to accommodate any changes or advancements in technology that may occur. Understanding the concept of hearsay and its application to ESI evidence is crucial for practitioners to navigate the complexities of evidentiary rules effectively.

The Three-Step Hearsay Test

Hearsay evidence, under Federal Rule of Evidence 801, is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Determining whether evidence qualifies as hearsay generally involves a three-step process.

  • Step 1: Does the evidence satisfy hearsay’s definition?

The first step is to ascertain whether the evidence meets the criteria outlined in the hearsay definition. This involves identifying whether the statement is made by a “person” (more on this definition below), whether it was made outside the current proceeding, and whether it is being offered to prove the truth of the matter asserted.

  • Step 2: If yes, does the evidence qualify as nonhearsay?

Certain types of evidence are deemed nonhearsay under FRE 801, even if they satisfy the hearsay definition. These include admissions by a party-opponent and prior consistent or inconsistent statements by a declarant-witness when he was subject to cross-examination. There is also certain nonhearsay under common law, such as verbal acts.

  • Step 3: If the evidence contains hearsay, does an exception apply?

Even if evidence qualifies as hearsay, it may still be admissible under various exceptions under FRE 803 and 804. Common exceptions include present sense impressions, excited utterances, business records, public records or reports, character or reputation testimony, and ancient documents. Each exception has specific criteria that must be met to warrant admission.

Applying the Hearsay Test to ESI Evidence

Applying the three-step test to common types of ESI requires careful consideration of their content and context. ESI evidence often presents challenges related to double-hearsay, or hearsay within hearsay, particularly in the context of email chains. Below are some examples of ESI evidence that qualify as hearsay, nonhearsay, or an exception to the hearsay rule.

Examples of ESI That Does Not Satisfy Hearsay’s Definition

Metadata: Metadata generated automatically by a computer program or system, such as timestamps, does not qualify as hearsay because it is not a statement made by a “person.” Therefore, it does not meet the requirement of hearsay that the statement originates from a person. See e.g., United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015) (holding that coordinates obtained from a satellite image were not “statements” because they did not involve an assertion by a person and thus were not hearsay).

ESI evidence demonstrating intent, motive, or knowledge: If the purpose of introducing a piece of ESI evidence is not to prove the truth of the statements within it, but rather to establish that the recipient was aware of the statement before taking action, then the statement does not fall under hearsay. See e.g., CA Inc. v., 780 F. Supp. 2d 196 (E.D.N.Y. 2009) (“The reply emails are not hearsay because they are not being submitted for the truth of their contents. Rather, they are being submitted to show that others accessed, used and were aware of the Meininger reference.”); University of Kansas v. Sinks, 565 F. Supp. 2d 1216 (D. Kan. 2008) (in a trademark infringement case, anonymous weblogs were not considered hearsay because the party seeking admission of the webpages only wanted to show that certain declarants were confused about the origin of a particular shirt).

Examples of ESI Evidence That Qualifies as Nonhearsay

ESI containing admissions by a party-opponent: In Sea-Land Services v. Lozen International, 285 F.3d 808 (9th Cir. 2002), an employee forwarded an email from another employee to a defendant, “incorporating and adopting the contents” of the original message. The U.S. Court of Appeals for the Ninth Circuit determined that by forwarding the email, the employee indicated acceptance or belief in the truthfulness of the original email’s assertions. As the employee forwarding the email was the authorized agent of the opposing party, and the statement was made within the scope of their employment, the court found the email chain as nonhearsay.  Videos produced by the opposing party are deemed nonhearsay. See e.g., Bellows v. San Miguel, 2002 WL 835667 (Ct. App. Tex. 2002). Similarly, text messages created by the opposing party are deemed nonhearsay. See e.g., United States v. Lewisbey, 843 F.3d 653 (7th Cir. 2016).

Examples of ESI Evidence That Falls Under a Hearsay Exception

Present Sense Impression: If the ESI evidence describes or explains events observed by the sender at the time they occurred, it may qualify under the present sense impression exception. See e.g., United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997) (an email detailing a stressful phone conversation with another employee shortly after it happened); Wilkinson v. State, 523 S.W.3d 818 (Tex. App. 2017) (a Facebook post stating “He’s yelling right now telling me I come from a family w/o money.”); Goode v. City of Southaven, 2019 WL 1089490 (N.D. Miss. 2019) (a video of the declarant being restrained as he was loaded into an ambulance).

Excited Utterances: Text messages describing two co-defendants changing bloody clothes were still considered excited utterances, despite the events occurring an hour or two earlier. See Funches v. State, 2012 WL 436635 (Nev. Feb. 9, 2012). Emails may qualify as excited utterances if they contain statements made by the sender while under the stress of a startling event or condition that caused the excitement. See e.g., Lorraine v. Markel American Insurance, 241 F.R.D. 534 (D. Md. 2007).

Business Records: Emails could be admissible under the business records exception if they were created at or near the time of the event by someone with relevant knowledge, as part of the regular course of business. However, this exception requires establishing these criteria for all participants in the email chain. See, e.g., Rambus v. Infineon Technologies AG, 348 F. Supp. 2d 698 (E.D. Va. 2004) (reasoning that “email is far less of a systematic business activity than a monthly inventory printout.”). Although text messages are typically considered private communications, the logs and records of these messages, maintained by either the business or the phone companies as part of their regular operations, have been recognized as qualifying for admission as business records. See, e.g., State v. Jordan, 2018 WL 1180563 (Ct. App. S.C. Mar. 7, 2018). The entirety of one party’s website was deemed sufficiently maintained to fall under the business records exception. See, e.g., Doctors Medical Center of Modesto v. Global Excel Management, 2009 WL 2500546 (E.D. Cal., Aug. 14, 2009).

Public Records or Reports: Printouts of government websites are typically exempt from the hearsay rule under the public records and reports exception. For example, both a printout from the U.S. Postal Service’s website and printouts from an official state board of education’s website are considered public records for hearsay purposes. See Chapman v. San Francisco Newspaper Agency, 2002 WL 31119944 (N.D. Cal., Sept. 20, 2002); Johnson-Wooldridge v. Wooldridge, 2001 WL 838986 (Ohio App. Ct., July 26, 2001). In Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486 (7th Cir. 1988), the court permitted videos of city council meetings to be entered as evidence after the city provided affidavits confirming that the videotape constituted the sole record of the proceedings for that session of the city council.

Ancient Documents: Text messages or emails exchanged before Jan. 1, 1998, could potentially qualify as ancient documents under certain circumstances. However, it is worth noting that, as of now, no published opinions have analyzed this exception relating to ESI.

The Takeaways

Navigating the complexities of the hearsay rule relating to ESI evidence demands a thorough understanding of its definition, exceptions, and application to ESI evidence. By employing a systematic approach and drawing insights from case law, practitioners can effectively address hearsay challenges to ESI evidence.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at

Reprinted with permission from the March 21, 2024 edition of “The Legal Intelligencer” © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or

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