Business-Records Exception (Litigator Series)

THIS CASEBOOK contains a selection of 32 U. S. Court of Appeals decisions that analyze and interpret the business records exception to the rule against hearsay. The selection of decisions spans from 2010 to the date of publication. The statutory text and committee notes to Federal Rules of Evidence 801, 802, 803, and 902 are also included.

Federal Rule of Evidence 803(6), commonly referred to as the business records exception to the bar against hearsay, provides for the admission of documents if certain conditions are met. To qualify for admission under Rule 803(6), a business record must satisfy four requirements: (1) it must have been created in the course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have created the document; and (4) the document must have been created by a person with knowledge of the transaction or from information transmitted by a person with knowledge. United States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006). A custodian or otherwise qualified witness must attest that the proffered document meets these conditions. Fed. R. Evid. 803(6)(D). Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, (6th Cir. 2014).

[U]nder Fed. R. of Evid. 803(6), records of a regularly conducted activity are to be admitted at trial as an exception to the rule against hearsay if: (A) the records were made at or near the time by someone with knowledge; (B) the records were kept in the course of a regularly conducted activity of, inter alia, a business or organization; (C) making the records was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. US v. Fahnbulleh, 752 F. 3d 470 (DC Cir. 2014).

Rule 803(6) further provides that the[ ] prerequisites for admissibility may be satisfied "by a certification that complies with [Federal Rule of Evidence] 902(11)." Working hand in glove with Rule 803(6)'s business-records exception, Rule 902(11) "permits a party to establish the authenticity of documents as domestic business records through a declaration from the records' custodian." United States v. Lewis, 594 F.3d 1270, 1278 (10th Cir. 2010). This is subject to the requirement that the proponent "must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them." Fed. R. Evid. 902(11). US v. Jenkins, (10th Cir. 2014).

The witness presenting the foundation for the admission of a record need not be the "author of the record or be able to personally attest to its accuracy." Instead, because this exception hinges on the "trustworthiness of the records," a court does not abuse its discretion by admitting documents from a custodian that never worked for the employer that created the documents if that custodian explains "how she came to possess them and how they were maintained." [Citations omitted.] US v. Isgar, 739 F. 3d 829 (5th Cir. 2014).

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