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United States v. Safavian, 2006 U.S. Dist. LEXIS 32284 (D.D.C. May 23, 2006).  Premium Content - Sign on to View
Defendant was a former public official charged with false statements and obstruction of justice following public disclosure of activities of a lobbyist employed by a law firm. The firm produced 467,747 email documents to the government, and defendant filed a motion in limine to bar the government from using about 260 of the documents at trial.

The court held that the email from the law firm was not self-authenticating following their certification by the firm's official custodian because the government had not sought admission of the email under the business records exception to the hearsay rule in F.R. Evid. 803(d). The court thus reviewed for authenticity and admissibility each of the 260 email documents objected to by defendant.

The email was authenticated because there was sufficient evidence for the jury to find that the documents were in fact email exchanges among defendant, the lobbyist, and others. The email had distinctive characteristics such as addresses with the @ symbol, and other sources were available to confirm that the email was authentic. Regarding email within email, the court held that the "possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course." Defendant would be entitled, however, to raise any issue of alteration with the jury.

Regarding admissibility of the 260 documents in the absence from trial of the lobbyist or someone else with personal knowledge, the court held that statements attributed directly to defendant or which defendant forwarded while indicating he was adopting their contents were admissible as admissions by a party opponent. Some of the email was admissible to show defendant's state of mind when he received the email. Others were admissible to provide context for defendant's statements rather than to prove the truth of the content of the email. Additional email documents were admissible to show defendant's motive and intent during investigations by the General Service Administration's Office of Inspector General and the Senate Committee on Indian Affairs. However, 13 email documents were deemed inadmissible.
 
 
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