When are emails admissible evidence in labor proceedings?

In its Judgment of July 23, 2020 (Rec. 239/2018) [ECLI:ES:TS:2020:2925] (the “Judgment”), the Supreme Court (Labor Chamber) ruled on the admissibility of email evidence to review the facts of cases on appeal, considering emails as documentary evidence. This entails admitting emails as evidence to prove facts. Until now, courts questioned the admissibility of emails in cases on appeal.

The context of this new Supreme Court approach is the development of new information and communication technologies and the digitalization of most of our activity. As a result, most of our professional and personal communications are via email.

Since emails are a widespread means of communication, it has become increasingly common and necessary for the parties in judicial proceedings to submit screenshots or hard copies of emails as evidence to prove certain facts or substantiate their claims.

Email evidence submitted at the relevant stage of the proceedings, with a significant impact on labor cases, replaces exchanges of mail communications or hard copies with acknowledgment of receipt. These are becoming increasingly uncommon, and email evidence is here to stay.

The Judgment examines the relevant case law and then confirms that emails should be considered admissible documentary evidence, although with certain specificities, to review the facts of cases on appeal. Therefore, in practice, and considering these specificities, courts ruling on appeals can examine email evidence.

The Judgment is based on these premises:

• The difference between “means of evidence” and “sources of evidence.” According to the Judgment, means of evidence are enabling instruments required to prove facts in the proceedings. Sources of evidence are sources of external information providing the means of evidence.
  
  The Supreme Court considers that emails are not means of evidence, but sources of evidence, since they need to be looked at, listened to or examined, i.e., they require an additional active conduct, in contrast with means of evidence, which are simply provided.
• “Broad” concept of documentary evidence. The Supreme Court supports a broad concept of “document,” in line with the Civil Procedure Act and other legal provisions (e.g., the Criminal Code, the Act on the Judiciary and the Property Transfer Tax Regulations).
  
  The Supreme Court also considers the context where the disputed rules apply: “As a result of technological development, many documents are submitted as evidence in electronic format, but they still qualify as documentary evidence.” The Court adds that “(…) if the notion of documentary evidence is not broadly construed, the review of facts on appeal would become meaningless, only including written documents, which will be barely used in the future.”
  
  This is in line with the interpretative criteria of article 3 of the Civil Code, providing that legal rules must be interpreted according to their social context.
  
  The Judgment assures that the concept of documentary evidence will be meaningless if only written documents and hard copies, and not documents submitted in electronic format, are considered documentary evidence.
  
  Consequently, emails must qualify as admissible documentary evidence.
• Authenticity, authentication and readability challenges. The Supreme Court notes that admitting email evidence does not entail that any email can alter the factual background of a first instance judgment. The following aspects must be considered:(i) if the parties have challenged the authenticity of emails; (ii) if the emails have been authenticated or certified; and (iii) if they are readable, i.e., if the content of the emails allows for drawing clear conclusions, without further evidence or arguments.

The Supreme Court settles the debate and advocates for a “broad” concept of documentary evidence, including emails, in line with current procedural practice, where most documents are submitted in electronic format.

The admissibility of email evidence would be easy to understand in case of screenshots and hard copies of emails. However, the Judgment also includes emails submitted in electronic format.

Therefore, we should wonder if this approach will apply to other means of communication involving online exchanges, such as WhatsApp or other messaging services, or if this development will allow a review of facts using other media playing images or sounds.