business records exception

Admitting a Business Record Under the Hearsay Exception

Posted by David Adelstein on May 06, 2017
Evidence / Comments Off on Admitting a Business Record Under the Hearsay Exception

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it.   The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment.

The recent opinion in Evans v. HSBC Bank, USA, 42 Fla. L. Weekly D1033a (Fla. 2d DCA 2017) is but another example of the business records exception coming up in a mortgage foreclosure case.   At trial, the lender offered the testimony of an employee of a loan subservicer to introduce the borrower’s payment history from different servicers. Her knowledge came from reviewing records. However, she confirmed during examination that (i) she really did not create the payment history of the borrower, (ii) another servicer created most of the payment history, (iii) the payment history was transferred over to her company, (iv) she did not know who created most of the entries on the payment history, and (v) she did not know the procedures used to incorporate other payment servicer’s records into her company’s records. Notwithstanding, the trial court admitted the payment history into evidence over the borrower’s objection that the payment history was inadmissible hearsay not satisfying the business records exception to the hearsay rule.

As you know from prior articles, hearsay is an out of court statement (written or oral) offered for the truth of the matter asserted.   Thus the payment history (a written out of court statement) is hearsay.   But, there are exceptions to the hearsay rule to introduce certain hearsay evidence. One applicable exception is the business records exception.

To admit a business record under the exception, a party must lay the right foundation that:

  • the business record was made at or near the time of the event;
  • the business record was made by or from information transmitted by an individual with knowledge;
  • the business record was kept in the ordinary course of business; and
  • it was a regular practice of the business to make such a record.

Of course, there is more to this with many cases discussing these foundational requirements. In this case, the witness could not properly lay the foundation since she did not know the procedures of prior loan servicers or even the procedure to incorporate their business records into her company’s business records. There was no testimony establishing the reliability of such records that is the hallmark to admitting evidence under a business records exception to the hearsay rule.   Based on this lack of reliability, the appellate court reversed the trial court’s ruling.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

Posted by David Adelstein on October 01, 2016
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If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records.  The proper foundation requires the witness to 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 regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Ocwen Loan Servicing, LLC v. Gunderson, 41 Fla.L.Weekly D2238a (Fla. 4th DCA 2016) quoting Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008).

The business records exception to the hearsay rule comes up quite a bit in the mortgage foreclosure context.   This is because the loans (notes and mortgage) get assigned or assumed by a new servicer or lender and the new servicer or lender moves to foreclosure on the mortgage. Many times the issue is laying the proper foundation with the witness being relied upon in order to admit certain documents under the business records exception to the hearsay rule.

In Ocwen Loan Servicing, LLC, the witness was trying to lay the foundation for records maintained by the original loan servicer (which was a company whose assets were purchased by the new loan servicer). He testified about the verification process of getting the original servicer’s records to the new servicer to ensure the accuracy of the records and then entering that information into the new servicer’s computer system.

The witness also tried to lay the foundation for a screenshot to show that the original promissory note was entered into the original servicer’s system / loan servicing platform. The trial judge sustained a hearsay objection and excluded this evidence because the witness did not work for the original servicer and had no personal knowledge as to its computer system / servicing platform.   The trial court also excluded the loan payment history and the default letter that was entered into the original servicer’s computer system as hearsay. As a result, the loan servicer could not support a mortgage foreclosure claim and the court entered judgment in favor of the homeowners.

The appellate court reversed finding that the documents that the trial court excluded as hearsay were admissible under the business records exception even though the new loan servicer took custody of the original servicer’s records:

Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’ [T]he authenticating witness need not be ‘the person who actually prepared the business records.’ As such, it is not necessary to present a witness who was employed by the prior servicer or who participated in the boarding process. Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it had procedures in place to check the accuracy of the information it received from the previous note holder. The testifying witness just need[s] [to] be well enough acquainted with the activity to provide testimony. Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records

Ocwen Loan Servicing, LLC, supra (internal citations and quotations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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A Promissory Note is NOT Hearsay

Posted by David Adelstein on April 23, 2016
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A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence.

The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of the contractual relationship and the rights and obligations of the parties to the note.” Deutsche Bank National Trust Co., supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein on February 16, 2016
Appeal, Evidence / Comments Off on Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

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If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases.

In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining the borrower’s objection to hearsay based on the lender not properly laying the foundation for the business records exception to the hearsay rule. (An involuntary dismissal is essentially the same thing as a directed verdict in a non-jury bench trial. Similar to a directed verdict, the standard of appellate review for a motion for involuntary dismissal is de novo. See Wells Fargo Bank, supra.) The trial court sustained the hearsay objection because the loan servicer’s records custodian witness was unable to describe the specialized computer programs utilized to generate the payment history and default notice. The trial court’s ruling in sustaining the objection precluded the lender from presenting the payment history and the default notice into evidence meaning the lender could not prove its case at trial. The Fourth District Court of Appeal reversed.

The Fourth District explained that a testifying witness establishing the business records exception to the hearsay rule “need not be the person who actually prepared the business records. Instead, the witness just need be well enough acquainted with the [record keeping] activity to provide testimony.” Wells Fargo Bank, supra (internal quotations and citation omitted).

While the witness was not familiar with how data was entered into the computer system, there is no requirement that the witness have such knowledge to satisfy the business records exception to the hearsay rule. The witness was sufficiently familiar with the loan servicer’s practices and procedures in generating the payment history and notice of default to lay the foundation for the business records exception.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Witness Laying the Foundation for the Admission of Business Records

Posted by David Adelstein on December 09, 2015
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More on the business records exception to the hearsay rule and the importance of laying the proper foundation to introduce business records under this exception. This is a must-know hearsay exception to any business-related dispute; and, it is imperative to understand the required testimony of the witness utilized to lay the foundation for the business records exception.

In Sanchez v. Suntrust Bank, 4D14-2457 (Fla. 4th DCA 2015) – yes, a mortgage foreclosure case—the lender introduced a screenshot of its record keeping system, the payment history with the borrower, default letters, and a payoff calculation. The lender introduced this documentation through the testimony of a loan servicer.

In introducing this documentation, however, the proper foundation for these business records was not laid.

To introduce documents under the business records exception, the introducing party must show through a witness:

(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 regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Sanchez, supra (citation omitted).

In this case, the witness was never asked whether the documents were made at or near the time of the event. And, as it related to the screenshot of the record keeping system, the witness did not know how the screenshot was created.

When it comes to the witness laying the foundation for the business records exception, the Fourth District explained:

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony. To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Sanchez, supra (internal quotations and citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Classic Hearsay: Declarant’s Out-of-Court Statement Offered to Prove the Truth of the Matter Asserted

Posted by David Adelstein on July 17, 2015
Evidence / Comments Off on Classic Hearsay: Declarant’s Out-of-Court Statement Offered to Prove the Truth of the Matter Asserted

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I previously discussed the concept of hearsay and that hearsay is inadmissible evidence at trial. There are exceptions to hearsay—such as the business records exception or admissions against a party opponent—that I have written about since they are important hearsay exceptions at trial that come into play to admit evidence at trial.

What is classic hearsay? Hearsay is simply an out-of-court statement (written or oral) introduced at trial to prove the truth of the matter asserted in the out-of-court statement. “[W]hen the only possible relevance of an out-of-court statement [introduced at trial] is directed to the truth of the matters stated by the declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label.” See Summerall v. State of Florida, 40 Fla. L. Weekly D1603b (Fla. 1st DCA 2015) quoting Keen v. State, 775 So.2d 263, 274 (Fla. 2000).

The criminal case of Summerall illustrates a classic example of classic hearsay. This case involved a domestic dispute between a former boyfriend and girlfriend. The boyfriend was arrested. During direct examination by the prosecutor, the girlfriend (victim) testified to the content of a phone call she had with her (criminal defendant) former boyfriend’s mother. She testified that before her former boyfriend arrived at her house, she received a call from his mother. When the prosecutor asked the girlfriend what her former boyfriend’s mother said on the phone call, the defense objected as “hearsay.” The trial court overruled the objection and allowed the girlfriend to testify. The girlfriend testified that her former boyfriend’s mother told her to call the police because the boyfriend had a gun and was going to shoot her.

But, there is a problem. The girlfriend’s testimony was classic hearsay as she was testifying to a declarant’s out-of-court statement (what her former boyfriend’s mother said to her on the phone) offered to prove the truth of the matter asserted by the declarant (that the girlfriend should call the police because the former boyfriend had a gun and was going to shoot her).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Importance of Laying the Appropriate Foundation for the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on February 08, 2015
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As you can tell from prior postings, I love the business records exception to the hearsay rule because of its importance in civil disputes, particularly business disputes. Without the business records exception, many business records that are needed to prove a claim or defense would be excluded as evidence under the hearsay rule. But, with the business records exception, these important records are admissible as long as a witness lays the appropriate foundation. The reason an appropriate foundation is required is to ensure the reliability or trustworthiness of the business records before deeming the records admissible evidence.

The case of Bank of New York v. Calloway, 2015 WL 71816 (Fla. 4th DCA 2015) is a case involving the business records exception to the hearsay rule in a mortgage foreclosure action. During the non-jury trial (as many promissory notes and mortgages contain a waiver of jury trial clause), the lender called a witness from the lender’s servicer (company that services the loan) to lay the foundation for the business records exception.

The witness testified that the servicer was not the original servicer of the loan. The prior servicer transferred the original loan documents along with business records detailing the payment history on the loan. To lay the appropriate foundation for the payment history documents, the witness testified that the payment history: 1) was a true representation of the payment history for the loan and was reviewed by the servicer before inputting the information into the servicer’s system; 2) was kept in the regular course of business activities by a person with knowledge of the event; 3) the person making the documents had a duty to accurately make the documents; and 4) it is the regular practice of the servicer to make the documents.

The borrower (or person alleged to have defaulted on the loan) objected and requested to voir dire the witness. This ultimately means that the borrower wanted to question and cross-examine the witness before the witness continued with her direct examination. In this case, the borrower wanted to immediately cross-examine the witness as to the foundation the witness laid for the business records exception in furtherance of ascertaining whether the proper foundation was laid. During questioning, the witness testified that her servicing company did not generate the payment history documents, rather it was documents transferred by the prior loan servicer. Thus, the witness was unable to answer how the prior servicer input payment information, who at the prior loan servicer input the payment information and whether this person did so with knowledge of its contents, and whether the information was entered as a regularly conducted business activity. Based on these answers, the borrower argued that the lender failed to satisfy the requirements for the business records exception to the hearsay rule; thus, the payment history constituted inadmissible hearsay. The trial court agreed and sustained the objection excluding the payment history as evidence.

On appeal, the central issue was whether the trial court properly excluded the payment history documents as hearsay or whether the lender properly laid the foundation for the business records exception. The Fourth District Court of Appeal held that the lender properly laid the foundation for the business records exception and the payment history should not have been excluded as inadmissible hearsay.

The importance of the Court’s ruling is that it articulates the ways in which a party that obtains certain records from a predecessor company/business can lay the foundation for the admissibility of business records to satisfy the business records exception to the hearsay rule:

First, the proponent [or party introducing business records] 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. Third and finally…the proponent has been able to establish the business-records predicate through a certification or declaration….

***

When employing this first option, it is not necessary to call the individual who prepared the document; however, the witness through whom the document is being offered must be able to show each of the requirements for establishing a proper foundation.

***

Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been made by the successor business, such that both records constitute the successor business’s singular business record. However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that the other requirements of the business records exception rule are met but also that the successor business relies upon those records and the circumstances indicate the records are trustworthy. 

***

Given this trustworthiness threshold, mere reliance by the incorporating business on records created by others, although an important part of establishing trustworthiness, without more is insufficient. In most instances, a proponent will clear this hurdle by providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy. In the alternative…the successor business itself may establish trustworthiness by independently confirming the accuracy of the third-party’s business records upon receipt. In any of the abovementioned circumstances, the sufficiency of the evidence is left to the trial court’s discretion.

Bank of New York, supra, at *3-5 (internal citations and quotations omitted).

Here, the lender’s witness testified that the servicer reviewed the accuracy of the payment history it received from the prior servicer before inputting that information into its system. Thus, the Court found that this established the trustworthiness of the payment history documents such that it was an abuse of discretion for the trial court to deem the documents inadmissible hearsay.

As previously mentioned, it is important to lay the appropriate foundation for business records.  If the appropriate foundation is not laid at trial, it could result in a key document being deemed inadmissible thereby preventing you from proving your claim or defense at trial. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
Appeal, Evidence, Standard of Review / Comments Off on Application of the Business Records Exception to the Hearsay Rule

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Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records 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 regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Introducing Business Records — An Exception To Hearsay

Posted by David Adelstein on December 15, 2014
Evidence / Comments Off on Introducing Business Records — An Exception To Hearsay

 

 

Business Records Exception

 

Business records are oftentimes introduced during trial. But, just because the record is called a “business record” does not automatically mean the record is admissible during trial. The business record still needs to be properly introduced (the foundation for the record properly laid) at trial; otherwise, the record constitutes hearsay: an out-of-court statement (written or oral) introduced to prove the truth of the matter asserted in the out-of-court statement. Thus, a business record would constitute hearsay evidence since it would most likely be introduced at trial to prove the truth of the matter asserted in the record.

Florida’s Evidence Code contains a hearsay exception for records of regularly conducted business activities (see below statutory reference). Fla. Stat. s. 90.803(6). This exception allows a business’s record custodian to lay the foundation for the introduction of business records to avoid the exclusion of such records under a hearsay objection.

The key to laying the foundation and satisfying the hearsay exception is that the records MUST BE:

  • made at or near the time of the event / activity – the event should be recorded when it is fresh in someone’s mind to ensure the accuracy and reliability of the record;
  • made from information transmitted by a person with personal knowledge – the person recording the event does not need personal knowledge, but they do need to have obtained the information by a person within the business with personal knowledge acting within their scope;
  • kept in the regular course by the business; and
  • a regular practice of the business to make a record whenever that activity occurs.

See Fla. Stat. s. 90.803(6); United Auto Ins. Co. v. Affiliated Healthcare Centers, Inc., 43 So.3d 127, 130 (Fla. 3d DCA 2010).

A business’s record custodian or other qualified witness that knows how the record was made is called to lay the foundation for this hearsay exception and, thus, introduction of the business records. This is important so that the business records can be published or presented to the jury.

As explained by the Third District:

“[I]n order to lay a foundation for the business records exception to the hearsay rule, it is not necessary to call the person who actually prepared the document. The records custodian or any person who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.”

Affiliated Healthcare, 43 So.3d at 130 (internal citations and quotations omitted).

Under certain circumstances, an affidavit can be used instead of live testimony to lay the foundation for a business record. Fla. Stat. s. 90.803(6)(c).

Finally, parties relying on business records to support a summary judgment motion should likewise lay the appropriate foundation for the record in an affidavit.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Florida Statute s. 90.803

(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. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(b) Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.

(c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

 

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