FORT LAUDERDALE BUSINESS LITIGATION: ADMISSIBILITY OF BUSINESS RECORDS

In business litigation, business records are admissible as an exception to the hearsay rule under Federal Rule of Evidence 803(6). This “business records exception” permits parties in business litigation to admit into evidence certain business records that are kept in the regular course of business. Business records are often play a key role in business litigation discovery. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

To establish that the business records exception applies to any document, the evidence must first show that the underlying document is authentic under Rule 901. United States v. Dreer, 740 F.2d 18 (11th Cir. 1984). The authentication burden is a light burden. United States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012). Second, the evidence must show that the authenticated document meets the requirements of Rule 803(6). United States v. Dreer, 740 F.2d 18 (11th Cir. 1984). An authenticated document is admissible as a business record if it “was made at or near the time by – or from information transmitted by – someone with knowledge”; if it “was kept in the course of a regularly conducted activity”; and if “making the record was a regular practice of that activity.” Fed. R. Evid. 803(6)(A)-(C).

The “proponent must [also] establish that it was the business practice of the recording entity to obtain such information from persons with personal knowledge and the business practice of the proponent to maintain the records produced by the recording entity.” U.S. v. Bueno-Sierra, 99 F.3d 375 (11th Cir. 1996). The proponent “could establish those requirements through ‘the testimony of the [record] custodian or other qualified witness,’ or by means of an out-of-court certification procedure established by rule or statute.” In re Int’l Mgmt. Assocs., LLC, 781 F.3d 1262 (11th Cir. 2015). A “qualified witness” is someone who “can credibly testify that it was the practice of the producing business to maintain the records as provided in Rule 803(6).” Cellar Law Organization, Inc. v. Sony Pictures Television Inc., 2014 WL 12580515 (S.D. Fla. April 12, 2014). “[R]ule 803(6) requires the testimony of a custodian or other qualified witness who can explain the record-keeping procedure utilized.” United State v. Garnett, 122 F.3d 1016 (11th Cir. 1997).

The qualified witness does not need to be the individual who created the records. United States v. Parker, 749 F.2d 628 (11th Cir. 1984). “Moreover, the producing business need not be the entity that originated the material contained in the records. Instead, the producing business’s records may be admissible if they incorporate the records of third parties, so long as the qualified witness can establish that the underlying material is also sufficiently trustworthy.” Cellar Law Organization, Inc. v. Son y Pictures Television Inc., 2014 WL 12580516 (S.D. Fla. Apr. 12, 2014).

Even if the underlying document satisfies Rule 803(6), it would still be inadmissible if either its “source of information” or “method of circumstances of preparation indicate a lack of trustworthiness.” F. R. Evid. 803(6)(E)); USAA General Indemnity Co v. Snow, 2020 WL 4432429, at *4 (M.D. Fla. July 31, 2020) (holding that when the testimony of a custodian or otherwise qualified witness shows that an authenticated document met conditions (A)-(C) contained in Rule 803(6), and “the opponent does not show that the source of information or lack of method or circumstances or preparation indicate a lack of trustworthiness,” the business record is admissible as an exception to hearsay).

Due to the trustworthiness competent, for the business records exception to apply, “all persons involved in the process must be acting in the regular course of business – otherwise, an essential link in the trustworthiness chain is missing.” T. Harris Young & Assoc.’s, Inc. v. Marquette Elec., Inc., 931 F.2d 816 (11th Cir. 1991). For example, courts have held that customer complaints cannot fall within the business record exception because the customer, as the supplier of information, does not act within the regular course of business.

Further, courts have recognized that merely because a party’s employee regularly receives and sends emails does not equate to a finding that all such emails fall within the business record exception to the hearsay rule. Marjam Supply Co. of Fla., LLC v. Pliteq, Inc., 2020 WL 1982995 (11th Cir. Apr. 27, 2020). Thus, for an email or any other document to fall within the business records exception to hearsay, a qualified witness must testify and establish that the email or document was “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 the business activity to make the document all as shown by the testimony of the custodian or qualified witness.” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc. 556 F.3d 1232 (11th Cir. 2009).

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.