Blueprint for Introducing Business Record to Satisfy Business Records Hearsay Exception
A recent opinion does a good job explaining how to establish a business record under the business records hearsay exception. In this case, there was an appeal dealing with an evidentiary hearing as to attorney’s fees. The appellant challenged the manner in which the appellee introduced attorney’s fees records claiming the appellee didn’t property satisfy the business records hearsay exception. Unfortunately for the appellant, the appellate court disagreed, finding that the appellee satisfied the business records hearsay exception with an affidavit.
Take a look at this noteworthy discussion. If you want to introduce a business records, here is the blueprint:
Hearsay refers to any out-of-court oral or written statement used to prove the truth of the matter asserted, and such statements are generally not admissible except as provided by statute. §§ 90.801-90.802, Fla. Stat. Hearsay statements are admissible as records of a regularly conducted business activity when accompanied by the testimony of a qualified witness attesting to certain foundational requirements:
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.
90.803(6)(a), Fla. Stat. In other words, business records are admissible when the proffering party establishes:
(1) that the record was made at or near the time of the event, (2) that it was made by or from information transmitted by a person with knowledge, (3) that it 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.
Jackson, 298 So. 3d at 536 (quotation omitted). These foundational requirements can be satisfied by either “(1) offering testimony of a records custodian, (2) presenting a certificate or declaration that each of the elements has been satisfied, or (3) obtaining a stipulation of admissibility.” Id. at 535 (quotation omitted).
If the party offers the testimony of a records custodian to lay the foundation, it is not necessary that the testifying witness be the person who created the business records. The witness may be any qualified person with knowledge of each of the elements. A qualified witness, therefore, is anyone with personal knowledge of the organization’s regular business practices relating to creating and retaining the record(s) at issue. This knowledge will necessarily come from the witness’s training or experience, or, most likely, a combination of both.
Id. at 535-36 (citation modified).
Here, [the witness’] affidavit satisfied the elements of section 90.803(6). He attested that he oversaw the case in both his current and former position and had personal knowledge of contents of the fee records and the Republic’s recordkeeping practices. He stated that he was familiar with the payments made by the Republic and that the records accurately reflect those payments. And he included specific language mirroring section 90.803(6)(a), stating that the records were “made at or near the time of occurrence of the matters and events set forth in the Invoices and Payment Records,” were “made by, or from information transmitted by, a person with knowledge of the described matters and events,” and were “kept in the course of the Republic’s regularly conducted business activities.” As the supreme court has noted, section 90.803(6) requires only “a minimal testimonial foundation” which is satisfied by “straightforward testimony that each of the criteria is met”:
A minimal testimonial foundation is both appropriate in this context and desirable in terms of fairness and the efficient administration of justice.
. . . .
To secure admissibility under Florida’s 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.
It would be odd if a party could not make this required showing with straightforward testimony that each of the criteria is met. Because the records custodian testimony is relevant only to the collateral issue of essentially authenticating relevant documents, there is no reason to prolong a trial and clutter a record with irrelevant details of those practices and procedures. To do so would add unnecessary inefficiency into the process.
Ferguson v. The Republic of Trinidad and Tobago, 51 Fla. L. Weekly D1025a (Fla. 3d DCA 2026).
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.
