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Courts have worked to construct rules for use before and during trial that ensure only true business records—that is, records of regularly conducted activity that carry an air of trustworthiness and reliability—are admitted into evidence, while avoiding admission of day-to-day communications and other documents that cannot be categorized as business records. This avoids the frequent trial demand of classifying every single company document, including emails, charts, memoranda and marketing brochures, as a “business record” for purpose of introducing evidence. This article discusses the current state of the law under the Federal Rules of Evidence, and provides guidance for attorneys seeking to admit or defend against the omnibus admission of various categories of corporate documents.

The Rule as It Has Always Been

Courts, including those in the U.S. Court of Appeals for the Third Circuit, have generally rejected a categorical rule that all documents or emails originating or received by employees of a corporate party that are kept in the normal course of business are admissible as business records as in Roberts Technology Group v. Curwood, No. 16-3079 (E.D. Pa. May 17, 2016), Rogers v. Oregon Trail Electric Consumers, No. 2:2010cv01337 (D.Or. May 8, 2012); In re Oil Spill by the Oil Rig Deepwater Horizonin the Gulf of Mexico, on April 20, 2012, MDL 2179 (E.D. La. Jan. 11, 2012); American Home Assurance v. Greater Omaha Packing, No. 15-1313, (D. Neb. Apr. 14, 2014).  Though some counsel at trial might seek to admit every record produced in litigation, skilled attorneys will preliminarily work to position important documents as business records through deposition testimony of company witnesses or by otherwise laying a proper foundation. This approach makes sense, as even the Federal Rules limit the scope of the business records exception to those documents that were made at or near the time of an occurrence by someone with knowledge of the occurrence, and were kept in the course of a regularly conducted activity where making the record was a regular practice of that activity.

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