SUCCESSFULLY USING BUSINESS RECORDS AT TRIAL

Trials in business disputes typically deal with documents such as correspondence, ledgers, contracts, and other business records. While those documents by themselves are often inadmissible hearsay, business trial attorneys usually get the documents into evidence via the “business records exception” to the rule against hearsay. The business record exception is based on the concept that records made in the regular course of business are sufficiently reliable to justify their admission into evidence.

In Florida, the business records exception is codified at section 90.803(6)(a), Florida Statutes, which provides:

[T]he following [is] not inadmissible as evidence, even though the declarant is available as a witness:

(6) Records of regularly conducted business activity.

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

Florida appellate courts have explained that to secure admissibility under the business record exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regular conducted business activity; and (4) that it was a regular practice of that business to make such a record. See, for example, Jackson v. State, 738 So.2d 382 (Fla. 4th DCA 1999).

Additionally, the proponent is required to present this information in one of three formats. First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. Second, the parties may stipulate to the admissibility of a document as a business record. See, for example, Kelly v. State Farm Mut. Auto. Ins., 720 So.2d 1145 (Fla. 5th DCA 1998). Third and finally, since July 1, 2003, the proponent can establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes. The certification — under penalty of perjury — must state that the record: (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (b) was kept in the course of the regularly conduct activity; and (c) was made as a regular practice in the course of the regularly conducted activity.

The Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), identified other important considerations. First, if evidence is to be admitted under one of the exceptions to the hearsay rule, it must be offered in strict compliance with the requirements of that particular exception. Second, when a document is made for something other than a regular business purpose, it does not fall within the business record exception. For example, whenever a record is made for the purpose of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized. See, for example, United States v. Kim, 595 F.2d 755 (D.C. Cir. 1979), which rejected an argument that a document created solely for litigation purposes was admissible as a business-records summary of otherwise admissible records. Following the reasoning in Kim, the court in Yisreal did not admit a summary of otherwise admissible records, because the underlying records were never tendered into evidence. The business-records exception to the hearsay rule does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.

With planning, business records are generally easy to admit into evidence. It simply requires a plan to follow the requirements of the evidence code. This is done most easily well in advance of trial.

Peter T. Mavrick represents businesses in commercial litigation, labor/employment law, and real property litigation. Mr. Mavrick has successfully represented many businesses in negotiations, mediations, and litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.