IRS commissioner: You know, e-mail isn’t necessarily an “official record”

Hotair ^

[tumblindice]

e-mails can be considered admissible evidence under the “business records” exception to the hearsay rule.

“So, when does an email qualify as a business record subject to the hearsay exception? A recent opinion from Judge Carl Barbier in the Deepwater Horizon oil spill multidistrict litigation provides further guidance. Like the government in Ferber,the plaintiffs in the Deepwater Horizon case argued that emails written by corporate employees about their work were admissible under the business records objection. Judge Barbier disagreed, stating: “There is no across-the-board rule that all emails are admissible as business records.” In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2012 WL 85447 (E.D. La. Jan. 11, 2012).
Instead, wrote Judge Barbier, whether a particular email is admissible depends on its content and the circumstances under which it was prepared. He identified five requirements that a party has to satisfy in order to show that an email is subject to the business records exception:

The email must have been sent or received at or near the time of the event(s) recorded in the email.

The email must have been sent by someone with knowledge of the event(s) documented in the email.

“The email must have been sent or received in the course of a regular business activity, . . . which requires a case-by-case analysis of whether the producing defendant had a policy or imposed a business duty on its employee to report or record the information within the email.”

It “must be the producing defendant’s regular practice to send or receive emails that record the type of event(s) documented in the email.”

A custodian or qualified witness must attest that these conditions have been fulfilled.”

Of course, as long as the IRS persists in pretending these records have been lost or destroyed, the matter is moot; the above only goes towards the legal status of e-mails. And just as a taxpayer is presumed guilty until proven innocent in tax court, conversely, the IRS probably considers itself innocent until proven guilty.

[morphing libertarian]

part of

[kevkrom]

Furthermore, it should be remembered that not all emails on IRS servers or backup tapes qualify as an “official record,” which is defined (in 44 U.S.C. 3301) as any documentary material made or received by an agency under federal law or in connection with the transaction of public business and appropriate for preservation.

Yeah, but only in the sense that the emails about the summer pot-luck and the like aren't "official records". Any document, electronic or otherwise, created as part of an official duty is an official record, and there are laws and regulations specifying how they are to be maintained, which the IRS is either not following, or at leafs claiming they're not following.

Therefore, start jailing the IT department until they start giving up the "missing" documents or their superiors.

[morphing libertarian]

The daily lies, spins, omissions, cover-ups and so on are are breathtaking in their volume and scope. They make Nixon look like George Washington.

[WaterWeWaitinFor]

Arrogant........ this from the group that attacks and tracks you back 7 years for a $3 deduction you took that they didn't like.

Keep calling your congress critters. I know it seems futile but make a concise list, then rattle them off sternly, starting with STOP THE INVASION of illegals, then arrest IRS officials NOW..... onwards to the other 2,355 other zippy administration scandals.

Ask them what are you doing TODAY to stop invasion of illegals. Sickening. Keep writing to your local papers, call into talk shows, etc. Silence is acceptance.

[NEMDF]

Yeah, all I get is some printout on a piece of paper for my W-2. I am not sure that should hold up as official records.

[reefdiver]

John got his @ss kicked hard this morning. The democrats looked foolish thru out the hearings. They do not want a special prosecutor, they are just blowing smoke as much as possible to cover this up.
The Republicans are doing a good job in exposing the lies

[JennysCool]

I KNEW that was coming. We are SO screwed.

How about an attitude adjustment? "I KNEW that was coming. Time to raise hell!"

The population of defeatists on Free Republic these days is amazing.

[FoxInSocks]

Individual employees are responsible for ensuring that any email in their possession that qualifies as a “record” is retained in accordance with the requirements

I have a very hard time believing that each and every IRS employee has received adequate training to be able to determine which documents are legally considered "records."

[Bratch]

Koskinen offered up his opening statement in writing, in part to suggest that e-mail should not be considered an “official record” anyway:

---

Throwback Thursday: The Tale of Two Email Rages

Posted on June 19 2014 - 2:05 PM - Posted by: Steve Flesher 

Three years ago, "activists" on a witch hunt along with an excited lapdog media were anticipating the release of almost 25,000 emails that spanned Governor Palin’s time spent as governor:

On the day these emails were released, "a throng of reporters" gathered into Juneau.

 

Once obtained, the media realized they bit of more than they could chew, so they called upon their readers for help in finding their smoking gun…

But, it was to no avail.  Their plan backfired and the Palin deranged fell flat on their faces:

"No ‘gotcha’ moments: Sarah Palin’s emails show engaged, driven leader"

 

Of course, nobody came out to tell the media or these Palin deranged whackos that all of that effort was an extremely poor waste of resources.

Today, we have one of the federal government’s largest agencies, the IRS, embroiled in a massive scandal over their treatment of conservative groups over the last few years.  As part of that investigation, emails within the agency were requested for viewing.  The IRS scandal is now being described as being worse than Watergate by the Wall Street Journal, yet Politico reports that the hard drives containing these public interest emails have been destroyed and an IRS source admits that the emails are likely "gone forever."

Governor Palin challenged Americans to try giving such lame excuses to the IRS next tax season to see what kind of response they’d get:

Obama’s IRS top dog claims a communications gap of 1,052,000 minutes. Hmm. Wonder if the press will recognize similarities. Maybe a smidgen? The IRS claims it just “lost” two years worth of email records sent to and from the central figure in their harassment of conservatives scandal. Try claiming that next tax season: “Oops-a-daisy, computer crash, all records gone, so… just trust me on what I claim I owe you, IRS.”

In addition to that, I’d like to challenge you to think of what the media’s response would have been to Governor Palin and/or the State of Alaska if they had claimed their hard drives crashed and that Governor Palin’s near 25,000 emails were "gone forever."

[Political Junkie Too]

Doesn't have a challenge message when he first logs onto his computer reminding him that everything is the property of the government and that his emails are being recorded and can be reviewed at any time?

-PJ

[DeWalt]

This whole IRS is a joke. And they are doing what they have harassed and criminalized so many for. The regulations that have been placed on all businesses in this country are to complicated for these morons to follow. Try this same defence with these idiots and see what happens.
Everytime an alphabet agency breaks its own laws, all citizens should ignore that law from there on.

[Fester Chugabrew]

They sent Lerner’s hard drive to the IRS criminal investigation division to try to recover data. I can see them pounding on it with a sledge hammer. “Oh. We’re so sorry. We cannot retrieve any data here.”

[don-o]

The population of defeatists on Free Republic these days is amazing.

I can accept that chastisement. I have, in fact, been vocal in my criticism of the Nervous Nellies and the doom and gloomers. I deserved that and thank you for it.

[MtnMan101]

[mikrofon]

I used to be in IT middle-management, and if we tried to pull this B.S. regarding any potential litigation, there’d be no next day at the office – and worse.

This is SOP for any responsible organization (but then again, the IRS is not “responsible” for anything they do)...

[meadsjn]

OK. Then my income that is transmitted electronically should not be counted as income, for tax purposes anyway.

[Buckeye McFrog]

Send Obama an email with a bunch of threats in it and see how official that record suddenly becomes.

[Uncle Chip]

This guy is lying to the committee and he knows it and the committee knows it — he should be taken away in handcuffs.

[JennysCool]

That’s the spirit! I know it’s tough to keep from doom and gloom these days, but what has doom and gloom ever accomplished besides depressing Scandinavian movies?