Private Sector Business Records

AuthorAshley S. Lipson
chApter 22
Private Sector
Business Records
§22.100 Introduction
§22.200 Basic Foundation for Business Records
§22.300 Opposition Checklist
§22.400 Specific Records
§22.401 Accident Reports
§22.402 Appraisals
§22.403 Bills and Statements of Account
§22.403(a) Bills of Lading
§22.403(b) Charge Slips
§22.403(c) Bills of Sale
§22.403(d) Invoices
§22.403(e) Statements of Benefits or Contributions
§22.403(f) Financial Statements and Records
§22.403(g) Receipts
§22.403(h) Estimates of Repairs
§22.404 Business Logs, Memos and Orders
§22.404(a) Business Logs
§22.404(b) Suspension Orders
§22.405 Banking Records
§22.405(a) Canceled Checks
§22.405(b) Deposit Slips
§22.406 Computer-Generated Documents
§22.407 Consumer Complaints
Is It Admissible? 22-290
§22.408 Corporate Memos
§22.408(a) Corporate Minutes and Resolutions
§22.409 Customer Lists
§22.410 DNA Matching Test Results
§22.411 E-Mail
§22.412 Employment Records
§22.412(a) Payroll Scales
§22.412(b) Time Cards
§22.412(c) Audits of Payroll Records
§22.413 Garbage
§22.414 Industry and Trade Standards
§22.415 Insurance Records
§22.415(a) Insurance Reports of Accident or Incident
§22.416 Letters
§22.416(a) Service Bulletins, Warnings and Notices to Customers
§22.416(b) Settlement Letters
§22.417 Lie Detector Results
§22.418 Manufacturer Specification Booklets
§22.418(a) Training Manuals
§22.419 Maps
§22.420 Medical and Hospital Records
§22.420(a) Doctors’ Notations
§22.420(b) Nursing Home Records
§22.420(c) Physicians’ Letters
§22.420(d) Nurses’ Notes
§22.420(e) Ambulance Call Report
§22.421 Medical Bills
§22.422 Mortgage Applications
§22.423 MRI (Magnetic Resonance Imaging) Test Results
§22.424 Polygraph Test Results
§22.425 Reports, In General
§22.425(a) Personnel Records
§22.425(b) Engineering Reports
§22.426 Sales Agreements/Contracts
§22.427 Scientific Reports
§22.427(a) Experts’ Reports
§22.428 Summaries
§22.429 Telephone Bills
§22.430 Thermographic Test Results
§22.431 Toxicology and Safety Tests
§22.432 Trade Secrets
§22.433 Vote Buying Account Records
§22.434 Comments and Notations
§22.435 School Records
22-291 Private Sector Business Records §22.100
1 In re Grand Jury Proceeding, 473 F.Supp.2d 201 (D.Mass., 2007). In order to establish that documents fall within the scope
of the regularly-conducted business activity hearsay exception, the record keeper might be called upon to testify as to wheth-
er: (1) the records were made at or near the time of the acts, events, conditions, opinions, or diagnoses set forth therein; (2) the
records were made by, or from information transmitted by, a person with knowledge; (3) the records were kept in the course
of a regularly conducted business activity; and (4) it was the regular practice of that business activity to make the record.
Birt v. Firstenergy Corp., 891 A.2d 1281 (Pa.Super, 2006). The trial court properly admits a business record if the
evidence shows that the record was made in the ordinary course of business, was not opinion testimony, and was
properly identified by the person who made it or was conversant with the necessity for its preparation and custody.
Moreover, for evidence to be admissible as a business record, a foundation must be laid through the testimony of a
witness indicating that he or she is familiar with the method of keeping the records.
City of Chicago v. Old Colony Partners, 364 Ill.App.3d 806, 847 N.E.2d 565, 301 Ill.Dec. 555 (2006). For purposes
of establishing a proper foundation for admission of business records, anyone familiar with the business and its pro-
cedures may testify as to the manner in which records are prepared and the general procedures for maintaining such
records in the ordinary course of business. A document is not inadmissible as outside the business records exception
to the hearsay rule simply because it was prepared by a third party authorized to act for the business.
Emigrant Mortgage Company, Inc. v. D’Agostino, 896 A.2d 814, 94 Conn.App. 793 (2006). Generally, authentication
is a necessary preliminary procedure for the introduction of evidence for most writings. A proponent may authenticate
a document by demonstrating proof of authorship of such writings. A writing may be authenticated by a number of
methods, including direct testimony, circumstantial evidence or proof of custody. The requirements for authenticating
a business record are identical to those for laying a foundation for its admissibility under the business records hearsay
exception. To qualify a document as a business record, the party offering the evidence must present a witness who testi-
fies that the record was made in the regular course of business, that it was in the regular course of such business to make
such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.
Farmers Alliance Mutual Insurance Company v. Naylor, 452 F.Supp.2d 1167 (D.N.M., 2006). In an insurer’s breach
of contract action against an insurance investigator, business records, which normally would be admissible at trial
under the business records exception to the hearsay rule, may be considered only if authenticated by a person through
whom the exhibits could be admitted into evidence. An e-mail purporting to reflect payment by a property insurer to
a fire investigator for his services in connection with an investigation of the origin of a fire on the insured’s premises
was not admissible under the business records hearsay exception where the insurer failed to provide the testimony of
a custodian or other qualified witness to authenticate the e-mail.
Century Indemnity Co. v. Aero-Motive Co., 254 F.Supp.2d 670 (W.D.Mich., 2003). Generally, a document may be
admitted as a business record if: (1) it was made in course of a regularly conducted business activity, (2) it was kept in
regular course of business, (3) it was the result of a regular practice of the business to create such a document, and (4) it
was made by a person with knowledge of the transaction or from information transmitted by a person with knowledge.
§22.100 Introduction
The most-used foundation tool for documents,
by far, is the business records exception to the hear-
say rule. That exception, during its lengthy journey
over years of common law, has acquired a variety of
names: the Shopbook Rule, the New York Rule, and
the Business Entry Rule, to name a few.
The drafters of the Federal Rules of Evidence,
in uncharacteristic fashion, clarified the subject, by
expanding the concept to all regularly conducted activ-
ities. As a matter of fact, Rule 803(6) is titled “Records
of a Regularly Conducted Activity.” It encompasses:
A record of an act, event, condition, opin-
ion, or diagnosis if:
(A) the record was made at or near the time
by—or from information transmitted
by—someone with knowledge;
(B) the record was kept in the course of a
regularly conducted activity of a busi-
ness, organization, occupation, or call-
ing, whether or not for profit;
(C) making the record was a regular prac-
tice of that activity;
(D) all these conditions are shown by the
testimony of the custodian or another
qualified witness, or by a certification
that complies with Rule 902(11) or (12)
or with a statute permitting certifica-
tion; and
(E) neither the source of information nor
the method or circumstances of prepa-
ration indicate a lack of trustworthiness.
The rule is quite detailed with respect to the
foundation requirements for admitting a business
record.1 But it is, nevertheless, recommended that

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT