Private Sector Business Records

• Author: Ashley S. Lipson
• Pages: 305-346

22-1

C 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? 22-2

§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

§22.436 Derived Records

§22.437 Document Drafts

22-3 Private Sector Business Records §22.200

§22.100 Introduction

The most-used foundation tool for documents,

by far, is the business records exception to the

hearsay 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

activities. 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

a simple foundation be presented unless and until

opposition is voiced.2

A distinction must be drawn between records

that are authored and created by a party litigant

in the ordinary course of business, and those that

are received from another entity and thereafter

maintained by the party litigant. The former are

generally admissible as the following sections

indicate. The latter may be admissible if the party

litigant received and maintained the entity’s records in

the ordinary course of its own business.3 Documents

that have been received from another entity are

generally not admissible under the business records

exception, unless a witness is qualified to offer some

testimony about the record-keeping practices of that

entity.4 This particular discussion pre-supposes the

existence of a hearsay issue, but not all third-party

documentation faces that problem.5

REFERENCES

Fingerprints, admissibility as business records.

36 Am. Jur. Proof of Facts 2d 285.

Records kept in course of regularly conducted

business activity. 34 Am. Jur. Proof of Facts

2d 509.

Bank records. 14 Am. Jur. Proof of Facts 2d 173.

§22.200 Basic Foundation for

Business Records

Q. (By Proponent’s Attorney) State your name

for the record.

A. (Witness) My name is Kip Keeper.

Q. State your title and occupation.

A. I work for Tasteless Choice Coffee

Company; I’m in the accounting department.

Q. (Tendering the writing to the witness)

I’ll show you plaintiff’s Exhibit 1, which

purports to be an employment record of the

plaintiff; and I’ll ask if you can identify it.

A. Yes. It’s the employee records for Elvis Ramirez.

Q. Is it part of your normal duties to keep and

maintain such records? 6

A. Yes.

Q. Was plaintiff’s Exhibit 1 kept in the ordinary

course of your company’s business?

A. Yes.

Q. (Tendering the writing to opposing counsel,

who should be provided with a copy if

requested) I’ll ask that plaintiff’s Exhibit 1,

which I have just handed to opposing counsel,

be entered into evidence as a business record.

COURT: Any objections?

OPPOSING COUNSEL: None.

COURT: Very well, I’ll receive plaintiff’s

Exhibit 1.

REFERENCES

Foundation for business records. 34 Am. Jur.

Proof of Facts 2d 509.