Also known as:business record · business records exception
Written by attorneys · grounded in primary & secondary sources — see below
A category of documents or entries created in the ordinary course of a business's operations by persons with personal knowledge. The records qualify for the hearsay exception when made at or near the time of the events recorded and kept as a regular practice of the activity. The exception does not extend to records whose primary purpose is litigation rather than the regular conduct of the enterprise.
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Cases
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How it applies
Common Examples
6
Accident Report Prepared for Litigation
Boreal Energy's safety officer compiled a detailed report on a pipeline rupture the day after the incident. The report followed the company's standard incident form but was created after the company had already retained counsel and anticipated a lawsuit from nearby landowners. When the landowners offered the report at trial to prove the cause of the rupture, the court excluded it because the primary purpose was litigation preparation rather than routine business operations.
Seized Business Ledgers in Search
Police executing a warrant at Blackwood Technologies seized internal accounting ledgers showing equipment purchases. At trial the prosecution offered the ledgers to prove the timing of certain acquisitions. The defense objected that the records lacked proper foundation because the custodian who normally maintained them was unavailable. The court admitted the ledgers after the prosecution established they were created in the ordinary course of business by employees with personal knowledge.
Coolidge v. New Hampshire403 U.S. 443 (1971)
Law Firm Billing Records Offered
Bright Path Foods sought to introduce its outside counsel's billing invoices to show the scope of legal work performed during a regulatory investigation. The invoices listed dates, tasks, and hours in the firm's regular billing format. The court admitted the invoices as business records after the firm's billing clerk testified that the entries were made contemporaneously by attorneys with direct knowledge and kept as part of the firm's standard practice.
Gentile v. State Bar of Nevada501 U.S. 1050 (1991)
DNA Lab Report as Business Record
In a criminal trial the state offered a DNA profile report prepared by an outside laboratory. A state forensic analyst testified that the lab was accredited and that its records showed the sample had been received and processed according to routine procedures. The court permitted the analyst to rely on the report's existence and chain of custody as a business record while prohibiting any testimonial statements about the testing process itself.
Williams v. Illinois567 U.S. 50 (2012)
Police Report Containing Third-Party Statement
A police report contained a witness statement taken at the scene of a robbery. The prosecution offered the report to prove the timing of the crime. The court excluded the witness statement because the witness had no business duty to report to the police. The remainder of the report's routine entries made by officers with personal knowledge were admitted as business records.
Crawford v. Washington541 U.S. 36 (2004)
Production of Records in Discovery
Brighton Manufacturing received interrogatories asking for the total number of units shipped to a particular customer over three years. Rather than compile a summary, the company produced its shipping ledgers and invoice databases. The requesting party reviewed the records and calculated the totals itself. The court held that the production satisfied the company's discovery obligation because the burden of deriving the answer was substantially the same for both sides.
Dairy Queen, Inc. v. Wood369 U.S., at 479 n.20
Common questions
Frequently Asked
5
What foundational elements must be shown to admit a document under the business records exception?+
The record must have been made at or near the time of the event by or from information transmitted by a person with knowledge. It must have been kept in the course of a regularly conducted business activity and making the record must have been a regular practice of that activity. These elements are typically established by the testimony of a custodian or other qualified witness.
Supporting sources
When does preparation of a record in anticipation of litigation prevent its admission as a business record?+
A record is excluded when its primary purpose is to prepare for litigation rather than to document the regular conduct of the business. Even if the record follows a regular format, courts examine whether the enterprise's core business is the activity recorded or whether the record was created mainly because litigation was expected.
Supporting sources
Can a party answer interrogatories by producing business records instead of compiling a written response?+
Yes. Under Rule 33(d) a party may answer an interrogatory by specifying the business records from which the answer can be derived if the burden of ascertaining the answer is substantially the same for both parties. The responding party must make the records available for inspection and copying.
Supporting sources
Does the business records exception require the declarant to be unavailable at trial?+
No. The exception applies regardless of the declarant's availability. The rationale is that the routine nature of the record and the business duty to record accurately supply sufficient guarantees of trustworthiness.
Supporting sources
What happens when a business record contains hearsay within hearsay?+
Each layer of hearsay must independently satisfy an exception or exclusion. A statement embedded in a business record is admissible only if the embedded statement itself qualifies under another hearsay exception or is not hearsay.
Supporting sources
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EvidencePresentation of evidence · Impeachment, contradiction, and rehabilitationUBEIntermediate