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How to Get Business Records and Other Documentary Evidence Admitted

A. Authenticating Documentary Evidence

"Writings" are evidence if offered to prove the existence or non-existence of a
disputed fact. Cal. Evid. Code § 140 Writing is broadly defined and may include video
and audio recordings, photographs, electronic records, emails, flash drives and the like.
See, e.g., Cal. Evid. Code § 25Q.

In order for a writing to be admissible, proper foundation must be laid —that is, a
showing that the writing is what it purports to be. Cal. Evid. Code §§ 1400, 1401. Generally, foundation may be laid by a percipient witness who saw the writing created, or who otherwise possesses personal knowledge, or where the writing's admissibility is permitted by law, or by admission, or by stipulation, or by a custodian of the business record. Cal. Evid. Code §§ 1560-1562. Sometimes the manner and method of the record's creation provides circumstantial proof of its authenticity.

If a document's or writing's authenticity is challenged, authenticity becomes a
preliminary fact and must be determined prior to admission. Cal. Evid. Code §§ 400,
403(a)
. The proponent has the burden of showing the writing is what it purports to be.
The judge determines whether the foundation is sufficient. See Cal. Evid. Code §§ 403,
1400.

There are special issues with the authenticity of Internet-based information. See
People v. Beckley (2010) 185 Ca1.App.4th 509, 515-516; Wady v. Provident Life & Acc. Ins. Co. (C.D. Cal. 2002) 216 F.Supp.2d 1060, 0164-65; St. Claire v. Johnny's Oyster and Shrimp, Inc. (S.D. Tx. 1999) 76 F.Supp.2d 773, 774-775.

B. Self-Authenticating Documents

Certain writings are presumed authentic—these are so-called "self-authenticating
writings:" See Cal. Evid. Code § § 1450, 1451; FRE 900 et seq.

The burden is on the party objecting to such records to sustain a finding they are
not authentic. Jacobson v. Gourley (2000) 83 Cal.App.4`h 1331, 1334.
"Acknowledged" writings are those executed before a notary public or other
official, and they include deeds, mortgages and the like.

Documents executed with a public seal are presumed authentic. Cal. Code Civ.
Proc. § 1931
; Jacobson, supra, 83 Cal.App.4th at 1335.

Official signatures and corporate signatures, if signed by two or more specified
corporate officials are self-authenticating. Cal. Evid. Code §§ 1453, 1454; Corp. Code §
313.

So-called "ancient" writings are self-authenticating if they meet the age criteria—
30 years, per Cal. Evict. Code § 643, and 20 years or before 1998 for federal court, per
FRE 901(b)(8)—and have indicia of reliability and is in a condition Chat raises no
suspicion as to authenticity.

Computer printouts are presumed authentic. Cal. Evid. Code § 1552(a); Ampex
Copp. v. Carlyle
(2005) 128 Cal.App.4th 1569, 1573
.

Under the Federal Rules of Evidence, the rules for self-authenticating evidence
are found at FRE 902 and include public documents (FRE 902(1), (2)-(4)); official
records (FRE 902(5)); newspapers and periodicals (FRE 902(6)); acknowledged
documents (FRE 902(8)); commercial paper and contracts (FRE 902(9)); and certified
computer records (902(13) and (14)).

C. Applying the Business Records Exception

The business records exceptions to the hearsay rule are very similar under
California and the Federal Rules of Evidence. See Cal. Evid. Code §§ 1270-1272; FRE
803(6) and 807(7)
.

Business records are admissible over a hearsay, foundation or authentication
objection if:

  1. The record is made and maintained in the regular/ordinary course of
    business;

  2. The record was created by someone who had the duty to create it, and it
    was the regular practice to create such a record;

  3. The record was made by someone with personal knowledge of the
    conditions of its making;

  4. The record was made contemporaneously (at or near the time) with the
    event it purports to document;

  5. The record is authenticated by a person who made the record, or by a
    custodian or other qualified witness; and

  6. The method of preparation demonstrates it is from a trustworthy source.

D. Authenticating Electronic Signatures

See Electronic Records and Signature Act, 15 U.S.C. §§ 7001, et seq.

E. Removing Inadmissible References from Records

Redaction of:

• Personal Identifiable Information:

- Social Security Numbers

- Phone Numbers

- Healthcare-related information

- Financial, banking, tax-related information

F. Applying the Best Evidence Rule

Generally, the original of a document or writing is admissible. Cal. Evid. Code §
1520; FRE 1002
.

However, a copy (secondary evidence) is normally admissible in lieu of the
original, unless there is a genuine dispute as to the copy's authenticity. Cal. Evid. Code §§ 1521, 1522; FRE 1003, 1004.

Even if a copy is not admissible, this does not prohibit oral testimony of its
contents. Cal. Evid. Code § 1523; FRE 1 Q04.

G. Summarizing Voluminous Records

  • Generally permitted

  • Accurately summarize

  • When admissible

  • When not admissible

H. Admissibility Shortcuts

  • Stipulation

  • Admissions of genuineness of documents

  • Judicial notice

--END--

The above article and all articles in this website are not intended to be legal advice. Readers should consult an attorney to determine how the law applies to their particular circumstances. Also, please understand that the law constantly evolves and changes. Certain of the decisions and legal propositions quoted in the above article may be out of date or superseded.

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