Private Sector Business Records

• Author: Ashley S. Lipson
• Pages: 317-360

22-1

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 Records, In General

§22.404(a) Business Logs

§22.404(b) Suspension Orders

§22.405 Canceled Checks

§22.406 Computer-Generated Documents

§22.407 Consumer Complaints

§22.408 Corporate Memos

§22.408(a) Corporate Minutes and Resolutions

Is It Admissible? 22-2

§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 or 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

22-3 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 whether: (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 pur-

poses of establishing a proper foundation for admission of business records, anyone familiar with the business and

its procedures may testify as to the manner in which records are prepared and the general procedures for maintain-

ing 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, authenti-

cation 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 require-

ments 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 testifies 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

(Footnote 1 continued on page 22-4.)

§22.100 Introduction

The most-used foundation tool for docu-

ments, 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 Evi-

dence, 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 Con-

ducted 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

business, organization, occupation,

or calling, whether or not for profit;

(C) making the record was a regular

practice 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 per-

mitting certification; and

(E) neither the source of information

nor the method or circumstances of

preparation indicate a lack of trust-

worthiness.

The rule is quite detailed with respect to the

foundation requirements for admitting a business

record.1 But it is, nevertheless, recommended