Federal Rule of Evidence 803(6), commonly referred to as the business records exception to the bar against hearsay, provides for the admission of documents if certain conditions are met. To qualify for admission under Rule 803(6), a business record must satisfy four requirements: (1) it must have been created in the course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have created the document; and (4) the document must have been created by a person with knowledge of the transaction or from information transmitted by a person with knowledge. United States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006). A custodian or otherwise qualified witness must attest that the proffered document meets these conditions. Fed. R. Evid. 803(6)(D). Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, (6th Cir. 2014).
[U]nder Fed. R. of Evid. 803(6), records of a regularly conducted activity are to be admitted at trial as an exception to the rule against hearsay if: (A) the records were made at or near the time by someone with knowledge; (B) the records were kept in the course of a regularly conducted activity of, inter alia, a business or organization; (C) making the records was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. US v. Fahnbulleh, 752 F. 3d 470 (DC Cir. 2014).
Rule 803(6) further provides that the[ ] prerequisites for admissibility may be satisfied "by a certification that complies with [Federal Rule of Evidence] 902(11)." Working hand in glove with Rule 803(6)'s business-records exception, Rule 902(11) "permits a party to establish the authenticity of documents as domestic business records through a declaration from the records' custodian." United States v. Lewis, 594 F.3d 1270, 1278 (10th Cir. 2010). This is subject to the requirement that the proponent "must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them." Fed. R. Evid. 902(11). US v. Jenkins, (10th Cir. 2014).
The witness presenting the foundation for the admission of a record need not be the "author of the record or be able to personally attest to its accuracy." Instead, because this exception hinges on the "trustworthiness of the records," a court does not abuse its discretion by admitting documents from a custodian that never worked for the employer that created the documents if that custodian explains "how she came to possess them and how they were maintained." [Citations omitted.] US v. Isgar, 739 F. 3d 829 (5th Cir. 2014).
The public-records exception is justified on the assumption that public officials will perform their duties properly and without bias. See Fed.R.Evid. 803(8) advisory committee's note; United States v. De La Cruz, 469 F.3d 1064, 1069 (7th Cir.2006). Three categories of public records are covered by the exception, Fed.R.Evid. 803(8)(A)(i)-(iii) (formerly FRE 803(8)(A)(C), respectively), and though there are important differences among the three, many public records fall into more than one category. See Mueller et al., Evidence Practice Under the Rules, supra, § 8.49, at 1008. The first category consists of records that set out a public office's activities. Fed.R.Evid. 803(8)(A)(i); see, e.g., Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 128-29, 39 S.Ct. 407, 63 L.Ed. 889 (1919) (Treasury records); United States v. Lechuga, 975 F.2d 397, 399 (7th Cir.1992) (court records). Jordan v. Binns, 712 F. 3d 1123 (7th Cir. 2013).
The second category encompasses records that set out "a matter observed while under a legal duty to report," though there is an exception to the exception in the context of criminal cases for matters observed by law-enforcement personnel. Fed.R.Evid. 803(8)(A)(ii); see, e.g., United States v. Meyer, 113 F.2d 387, 397-98 (7th Cir.1940) (map prepared by government engineer based on data compiled from workers under his supervision). Jordan v. Binns, ibid.
The third category is comprised of records setting forth "factual findings from a legally authorized investigation" (though in criminal cases they may be used only against the government), Fed.R.Evid. 803(8)(A)(iii), which includes evaluative reports containing opinions and conclusions. See Beech Aircraft Corp., 488 U.S. at 166-70, 109 S.Ct. 439; Young v. James Green Mgmt., Inc., 327 F.3d 616, 624 (7th Cir.2003) (administrative findings concerning discrimination claims). Records falling into one of these categories are presumptively admissible but may be excluded, in the court's discretion, if the party opposing admission establishes that the circumstances indicate a lack of trustworthiness. Fed.R.Evid. 803(8)(B); see also United States v. Romo, 914 F.2d 889, 896 (7th Cir.1990). Jordan v. Binns, ibid.
[T]elephone records [can fall] within the business-records exception to the hearsay rule [ ]. Rule 803(6) carves out an exception to the general rule against hearsay for records "kept in the course of a regularly conducted activity of a business . . . [if] making the record was a regular practice of that activity." "The rationale behind this exception is that business records 'have a high degree of reliability because businesses have incentives to keep accurate records.'" Ary, 518 F.3d at 786 (quoting United States v. Gwathney, 465 F.3d 1133, 1140 (10th Cir. 2006)). US v. Jenkins, ibid.
While properly authenticated e-mails may be admitted into evidence under the business records exception, it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those e-mails are business records falling within the ambit of Rule 803(6)(B). "An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule." Morisseau v. DLA Piper, 532 F.Supp.2d 595, 621 n. 163 (S.D.N.Y.2008). US v. Cone, 714 F. 3d 197 (4th Cir. 2013).
THIS CASEBOOK contains a selection of 32 U. S. Court of Appeals decisions that analyze and interpret the business records exception to the rule against hearsay. The selection of decisions spans from 2010 to the date of publication. The statutory text and committee notes to Federal Rules of Evidence 801, 802, 803, and 902 are also included.