Ensuring that e-mails are admissible as evidence in support of a motion for summary judgment may be vital to the success of the motion. In Lorraine v. Markel American Insurance Co., the U.S. District Court for the District of Maryland denied Motions for Summary Judgment, without prejudice to re-file, based on each party's failure to ensure the admissibility of their proposed e-mail evidence in support of their petitions to enforce an arbitrator's award. Chief Magistrate Judge Paul W. Grimm's opinion provides a detailed and thoughtful approach to the necessity of ensuring that e-mails are admissible evidence for summary judgment under Federal Rule of Civil Procedure 56(e) as well as at trial. Whether Electronically Stored Information ("ESI") is admissible depends on an analysis of the applicability of a number of Federal Rules of Evidence: relevance (Rule 401), authenticity (Rule 901(a)), hearsay covered by an exception (Rules 801, 803, 804 and 807), originals or duplicates (Rules 1001-1008), and whether the probative value outweighs the possible prejudice (Rule 403).

In making the analysis, the Court directed particular attention to the parties' failure to attempt any authentication of the critical e-mails. The party offering the document into evidence need only make a prima facie showing of the authenticity of the document. The Court noted that while the standard is relatively low, counsel often fail to meet even this "minimal showing." Judge Grimm referred to this omission as a "self-inflicted injury which can be avoided by thoughtful advance preparation."

E-mails are the most frequent form of ESI that practitioners encounter. The lack of formality of e-mails coupled with their creation at or near critical events makes them frequent fodder as evidentiary exhibits. This fact is particularly true when proof requirements consist of state of mind, intent or motive. As with hard-copy evidence, direct or circumstantial evidence may be used for authentication. E-mails may be self-authenticating under Fed. R. Evid. 902(7) if, as with many business e-mails, the e-mail has a tag identifying the company-employer and the origin of the e-mail. The address of the sender, however, may be insufficient alone to authenticate a document since there can be unauthorized use of the computer. A person with personal knowledge of the sending or receiving of the e-mail may need to testify to provide adequate authentication.