§ 12.03 Routine Business Practices

• Jurisdiction: North Carolina

§ 12.03 Routine Business Practices

Rule 406 also permits the use of an organization's routine practice to prove that the organization acted in accordance with that practice on a particular occasion. The phrase "an organization's routine practice" refers to the "habit" of an organization, commonly known as business practice, usage, or custom.¹⁹ Large businesses, of necessity, develop standard operating procedures (SOPs), such as a routine practice for receiving and mailing documents. Hospitals have routine procedures for the operating room, such as an instrument count before sewing up the patient. Because (unlike the habit of a person) there is no risk of improper character being smuggled before the jury in this context, routine practice evidence should be readily admitted.²⁰

[A] Custom to Establish Standard of Care

Rule 406 governs only one use of routine-practice evidence—the use of such evidence to show that an organization on a particular occasion acted in accordance with an established practice. The use of routine-practice evidence for another purpose is not regulated by the rule. For example, custom or routine practice is often used to establish the standard of care in negligence cases such as medical malpractice litigation.²¹ Such evidence is not offered to prove conduct, and therefore Rule 406 does not apply.²²

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Notes:

^[19] The phrase "organization" is broader than the term "business." Rule 803(6)(B), the hearsay exception for business records, uses the terms "business, organization, occupation, or calling, whether or not for profit," which includes the records of institutions and associations like schools, churches, and hospitals. See infra § 33.10 (discussing business records).

^[20] See Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1285 (11th Cir. 2008) ("We have not announced a precise formula for determining when a practice of an organization is so consistent that it becomes routine or habitual, but we have determined that adequacy of sampling and uniformity of response are controlling considerations [in making such a determination].") (internal quotations omitted); Mobil Exploration and Producing U.S., Inc. v. Cajun Const. Services, Inc., 45 F.3d 96, 100 (5th Cir. 1995) ("Mobil introduced evidence to show that Cajun invariably loaded its trucks in the same manner and to the...