Records of Regularly Conducted Activity

October 12, 2015 § 2 Comments

MRE 803(6) is an important exception to the hearsay rule. It allows you to admit into evidence certain documents even though they are in essence hearsay. The rule reads this way:

Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The document is admissible (1) if the information recorded was by a person with knowledge, and (2) the document was kept in the course of regular business activity, and (3) keeping such information in that form was the regular practice of the entity.

It is not necessary for every person who participated in compiling the data to come to court to testify about it to make it admissible. It can be authenticated by a “custodian or other qualified witness,” or it can be self-authenticated, as we will discuss below.

The court will determine whether the source and method of preparation are trustworthy enough to support admissibility.

Self-authentication is covered in MRE 902. To put it in simple terms, self-authentication means either that

  1. The document itself bears insignia or signs of authenticity so that a custodian or other person is not necessary to identify it and establish its authenticity. Some examples are set out in the rule, and you can expand on those to come up with other categories of documents to authenticate in this fashion.
  2. The document is accompanied by a certificate of authenticity as provided in MRE 902(11). This category is a little more ticklish to accomplish, so we will look at it in greater detail.

MRE 902(11) provides as follows:

(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of
information or the method or circumstances of preparation indicate lack of trustworthiness.

(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury; and, (ii) with respect to records maintained or located in a foreign country, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. A certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and the position in the regularly conducted activity of the executing individual as is required for certification of Foreign Public Documents by subsection (3) of this rule.

So to comply with this part of MRE 902(11) you must file an affidavit under criminal penalty of perjury that the affiant swears that all of the requirements of MRE 803(6) are satisfied, and that the affiant is a person who could establish authenticity if he or she were to testify. You should track the language in both paragraphs in drafting your affidavit. Note that if the affidavit is by a person in a foreign country you must comply with MRE 902(3).

Now that you have done all that, there is more that you need to do to make the document(s) admissible at trial. MRE 902(11)(C) is critical:

(C) (i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections. (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time. (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating. (iv) If in a civil case, on motion by the proponent after the trial
or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.

You must give timely notice to your opponent of your intent to offer the records under this rule, and if the opponent objects, you must set a hearing for the court to resolve the issue. Note the language of the rule: “Records so certified will be self-authenticating only if the proponent gives notice …” No notice = no self-authentication.

Sometimes lawyers agree on a handshake to let the document(s) in. That’s okay when it works, but every lawyer has a tale of woe about an opponent who said one thing in the halls of the courthouse two weeks ago, and then does not quite remember it the same way on the floor of the courtroom at trial. Better practice is to file that notice with a certificate of service. At a minimum, you should document the notice via email or regular mail. Any documentation is better than none, but some forms are better than others.

MRE 902 is a marvelous road map for how to get documents into evidence without a sponsoring witness, but you’d better follow it in every detail if you wish to succeed.

 

 

 

LAYING THE FOUNDATION FOR A BUSINESS RECORD

March 3, 2011 § 1 Comment

Business records play a role in many chancery court matters.  Getting them into evidence can sometimes be crucial to your case.

MRE 803(6) allows introduction of business records, and states that they are “not excluded by the hearsay rule, even though the declarant is available as a witness.”  Before you can get the records into evidence, however, you must lay a foundation that the records come within the rule.  The four elements of foundation are:

  1. The record was made and kept in the course of regularly conducted business activity;
  2. The record is one that is routinely made and kept in the course of business, in the business’s usual practice;
  3. The record was made at or near the time of the event that it records; and
  4. The record was made by a person with knowledge, or from information transmitted by a person with knowledge, and who reported such knowledge in the regular course of business.

The witness who establishes the four elements will be either the record custodian or “other qualified witness,” who may be any person who can testify that the records satisfy the four elements.  The witness need not have personal knowledge of the contents, nor is it required that the witness was custodian at the time the record was made.  All that is required is that the witness have knowledge of the procedures under which the records were made and maintained.  In H & E Equipment v. Floyd, 959 So.2d 578, 581 (Miss. App. 2007), the trial court properly excluded the invoices upon which the plaintiff sought to sue on open account because the custodian failed to explain how the invoices, many of which were reprints, were created, or that the invoices relied on were created at the time the charges were incurred. 

Under the rule, the focus is on when the documents were created, their trustworthiness, and whether they were created in the course of regularly conducted business.  Ferguson v. Snell, 905 So.2d 516, 519-520 (Miss. 2004).  In Bower v. Bower, 758 So.2d 405, 414-415 (Miss. 2000), husband offered the monthly internet bills to prove wife’s internet usage, and the husband’s testimony was the only authenticating testimony offered.  The supreme court held that the trial court properly excluded them as not being proven to be business records; if you click through the criteria above, you can see that husband’s testimony did not meet them.

The fact that the records are maintained on a computer or in a data file does not require any additional foundation requirements. 

The person who generated the information in the record must have had personal knowledge, but the person who entered or recorded the information need not have personal knowledge.  For example, an employee of the business observes a chemical process and records the temperatures, reactions and times involved in hand-written notes, which she then tenders to a stenographer who turns the notes into a typed record that is maintained by a custodian.  The employee who observed must have had first-hand knowledge when the notes were made and if called as a witness, but neither the stenographer nor the custodian are under the same requirement simply to authenticate the documents as business records.  In Dillon v. Greenbriar Digging Service, 919 So.2d 172, 174 (Miss. App. 2005), it was held that the trial court properly let in an inspection report, even though the inspector/custodian who testified was not the inspector who performed the documented inspection, because he adequately authenticated it as a business record.    

If the record includes a statement by a person who is not a part of the business and is under no duty to make the report, and the statement is offered to prove the truth of the matter asserted, it will be treated as hearsay that is inadmissible, unless it can be shown to come within an exception to the hearsay rule.  An example:  The business’s employee reports the contents of a conversation he had with a customer.  If the statement is offered to prove the truth of the matter asserted by the customer, it is hearsay and will not be allowed in unless it comes within an exception, such as the customer’s own statement offered against him.  In Bingham v. State, 723 So.2d 1189, 1190 (Miss. App. 1998), the court of appeals held that a police officer’s report may be admitted only to prove matters observed by the officer, but not to prove inadmissible matter such as the hearsay statements of persons interviewed by the officer.  Copeland v. City of Jackson, 548 So.2d 970, 975 (Miss. 1989).  But see, Watson v. State, 521 So.2d 1290, 1294 (Miss. 1990), where the supreme court upheld admission of letters of complaint from customers maintained by a bank on the basis that the documents were made a part of the ban business records. 

It sometimes happens that records generated by third parties become part of a business’s records.  An expert’s report and recommendations, for instance, may be included in the records of a project.  The expert’s testimony would not be required for introduction of the report if:  (1) the custodian can establish that the expert’s report was incorporated into records kept in the normal course of business; (2) that the business keeping the record relies on its accuracy in the conduct of its business; and (3) “other circumstances” indicate the trustworthiness of the document.  Documents that are prepared for litigation or “litigation inspired” are generally found to lack trustworthiness.  Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987); See, e.g., Gilbert v. Ireland, 758 So.2d 1050, 1053-1054 (Miss. App. 2000) 

When the source of the information is an outsider who is not a member of the business organization, the statement may be admissible if there is proof that there is a regular practice of verification by an employee so that the outsider’s statements are adopted by the business and become its own statements.  An example of an admissible outsider record would be an invoice submitted by an outside company that is verified by an employee, matched to a purchase order of the business, and attached to records in the business’s files.  An example of an inadmissible outsider statement would be a letter from someone not connected with the business that is merely placed in the files of the business.  

Objections that the records include ambiguous or inaccurate statements or that they are incomplete go to the probative weight and not to admissibility.

Proof of matters based on absence of entries in business records and admissibility of public records are subjects of other posts.

MRE 902 addresses self-authentication, which may apply to some business records.

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