§ 4.03 THE AUTHENTICATION OF BUSINESS WRITINGS

• Jurisdiction: North Carolina

§ 4.03 THE AUTHENTICATION OF BUSINESS WRITINGS

[1] CONVENTIONAL BUSINESS WRITINGS

Authenticating an ordinary business record is a very simple matter. The cases teach that proper custody is sufficient authentication for business records. It is sufficient if the witness is familiar with the business' filing system, took the record from the right file, and recognizes the exhibit as the record removed from the files.

The foundation is brief; the elements are:

1. The witness has personal knowledge of the business' filing system.
2. The witness removed a record from a certain file.
3. It was the right file.
4. The witness recognizes the exhibit as the record he or she removed from the files.
5. The witness specifies the basis on which he or she recognizes the exhibit.

In a contract action, the plaintiff's business, Collegiate Clothing Manufacturers, wants to authenticate a bill it prepared in December 2017. The plaintiff calls Ms. Peters as its witness.

P WHAT is your occupation? (1)

W I am a chief bookkeeper.

P WHERE do you work? (1)

W I work at the main office of the plaintiff.

P HOW long have you worked there? (1)

W About seven years.

P WHAT are your duties? (1)

W As chief bookkeeper, I ensure that we have proper records of all the money and goods flowing into and out of the company. I supervise the records' preparation, maintenance, and eventual destruction.

P HOW well do you know the plaintiff's filing system? (1)

W I know it backwards and forwards. In fact, I helped design the system.

P Ms. Peters, WHERE were you this morning? (3)

W I was picking up the records I thought we would need for the trial today.

P WHERE did you go to get the files? (4)

W I went to the file cabinet for our 2017 records. I was particularly interested in the records for December of that year.

P WHAT did you find in the file? (3)

W I located all the bills and invoices we needed.

P Your Honor, I request that this be marked as plaintiff's exhibit number three for identification.

J It will be so marked.

P I request permission to approach the witness.

J Permission granted.

P Ms. Peters, I now hand you plaintiff's exhibit number three for identification. WHAT is it? (4)

W It's one of the bills I removed from the file for December 2017.

P HOW can you recognize it? (5)

W I recognize the handwriting of the clerk, John Winters; I've known him for years. In addition, I can generally recall the contents of each of the bills I took out of the file cabinet.

P Your Honor, I now offer plaintiff's exhibit number three for identification into evidence as plaintiff's exhibit number three.

J It will be received.

P I now request permission to hand the exhibit to the jurors for their inspection.

J Permission granted.

In 2000, Rule 902 was amended to provide that a copy of a business record accompanied by a proper attesting certificate is self-authenticating. Thus, as we shall later see in subsection [7], if the exhibit included a proper 902(11) certificate, there would be no need for live, sponsoring testimony.

[2] COMPUTER RECORDS

Computer-generated evidence is a species of scientific evidence. The scientific process of generating data by computer is beyond the knowledge of most laypersons. As § 4.10 of this chapter explains, the presentation of scientific evidence usually requires proof of the validity of the underlying theory and the reliability of the instrument. However, computers are so widely accepted and used that the proponent of computer evidence need not prove those two elements of the foundation; under Federal Rule of Evidence 201, the trial judge will judicially notice the validity of the theory underlying computers and the general reliability of computers.

In the past, many courts have been lax in applying the authentication requirement to computer records; they have been content with foundational evidence that the business has successfully used the computer system in question and that the witness recognizes the record as output from the computer. Rudolph J. Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence, 80 Nw. U.L. Rev. 956 (1986). However, following the recommendations of the Federal Judicial Center's, Manual for Complex Litigation, many courts now require a more extensive foundation. Id. These courts require the proponent to authenticate a computer record by proving the reliability of the particular computer used, the dependability of the business's input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness's recognition of that document as the readout from the computer.

It is important to remember that a layperson might be unable to interpret the readout. The readout may use symbols and terminology only an expert can understand. If that is the case, after introducing the record, the proponent will have to have the expert explain the record to the trier of fact.

In general, the elements of the foundation are these:

1. The business uses a computer.
2. The computer is reliable.
3. The business has developed a procedure for inserting data into the computer.
4. The procedure has built-in safeguards to ensure accuracy and identify errors.
5. The business keeps the computer in a good state of repair.
6. The witness had the computer readout certain data.
7. The witness used the proper procedures to obtain the readout.
8. The computer was in working order at the time the witness obtained the readout.
9. The witness recognizes the exhibit as the readout.
10. The witness explains how he or she recognizes the readout.
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

The immediately following foundation is for a computer system that used traditional punch card technology. Some older jurors may be familiar with this technology. Although very few businesses employ this technology today, in a given case the proponent might have to introduce business records that were prepared decades before. If so, the proponent could conceivably have to lay a foundation based on the old punch card methodology. That foundation is followed by a second foundation for a more modern computer system in which each employee has a computer that is part of a network, so that each employee can directly input information to the business' central databases.

Suppose that Acme Corporation brings an antitrust suit against Bechtor, Inc. To prove its damages, Acme wants to show that its gross sales declined from 2012 to 2017. Acme wants to use a computer printout to show its gross sales in those five years. As its witness, Acme calls Mr. Schons. Acme is the proponent.

Traditional Foundation for Punch Card Technology

P Mr. Schons, WHAT is your occupation?

W I am one of the accountants from Acme Corporation.

P HOW long have you worked for Acme Corporation?

W Roughly 10 years.

P HOW long have you worked for Acme Corporation as an accountant?

W Again, roughly 10 years.

P WHAT are your duties with Acme Corporation?

W My specialty is the maintenance of our computer records.

P HOW does Acme maintain its business records? (1)

W We maintain the overwhelming majority of our data in our computer.

P WHICH computer do you use? (1)

W We use an IBM 720.

P HOW long have you used that computer? (2)

W For the last eight years.

P HOW widely used is that model computer? (2)

W There are hundreds in use throughout the country. When it was first marketed, it was the top of the line. There's a somewhat more sophisticated model available now, but the 720 is regarded as one of the most dependable models on the market.

P WHAT procedure does Acme have for using the computer to maintain its records? (3)

W When an order comes in from a customer, we ship it straight to the sales department. They check it to ensure that the order has the correct spelling of the product name.

P WHAT does the sales department do with the order then? (3)

W They send it to the computer center. The center personnel punch the information onto cards. We use the cards to feed the data into the computer. The computer tries to make certain that the merchandise is available and that the purchaser's credit is good. If the order passes those tests, the computer then makes entries on the customer's account and stores data for statistical and management reports.

P HOW do you know that that is the procedure? (3)

W I helped design the procedure. As I said, computer record maintenance is my specialty.

P WHAT safeguards, if any, do you use to ensure that your records are accurate? (4)

W There are double checks at several points. We have a program that automatically checks each sales invoice against the online order. Perhaps the most important safeguard is the customers' review of the bills we print out and send them. If anything's wrong, they usually let us know right away.

P HOW is the computer maintained? (5)

W We have an IT contractor who visits the department every two weeks. She thoroughly checks the computer.

P WHERE were you yesterday afternoon? (6)

W I was at my office.

P WHAT were you doing there? (6)

W I was trying to get the data I thought we'd need today in court.

P WHAT data was that? (6)

W I knew we'd need the total sales figures for 2012 and 2017.

P HOW did you obtain the data? (6)

W I had the computer print it out.

P HOW did you obtain the printout? (7)

W I went to the terminal, set it in the printout mode, and then requested the sales figures.

P HOW many times did you request the data from the computer? (7)

W Twice.

P WHY did you do it twice? (7)

W I wanted to make certain I had the right figures.

P WHAT was the result of your double-check? (7)

W The computer read out the same data both times.

P WHAT condition was the computer in at the time? (8)

W It seemed to be O.K. There were certainly no obvious problems. It had been checked the night before, and we'd used it several times already that day without any difficulty.

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