To: Penny L. Willrich, Senior Partner
Fr: Kristy Duncan and Niesha Esene, Junior Associates
Da: April 10, 2013
Issue: Whether the memorandum detailing the history of Tawdry’s contracts with B-Grade Entertainment for the past five years that was drafted by Tawdry’s Manufacturing VP to Tawdry’s President qualifies as a business record and will be admissible as such by the judge at trial?
Rules: Under the Federal Rules of Evidence Rule 803(6) business records can come in as evidence as an exception to the hearsay rule if such business records were: (i) made at or near the time by someone with knowledge; (ii) kept in the course of a regularly conducted activity of a business; (iii) made as a regular practice; (iv) certified or testified to by a qualified witness; and (v) trustworthy in that neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Analysis: Here, Tawdry’s memorandum was drafted at least five years after the parties first contracted and after disagreements occurred about the contracts and contract terms but before litigation. Business records must be made at or near the time by someone with knowledge and the memorandum was not made as disputes arose. It is unclear whether Tawdry’s Manufacturing VP had knowledge of all of the disputes. Here, the memorandum was created after at least five years of contracting and after disputes arose. Business records must be kept in the course of regularly conducted activity of the business so records should be dated on or around the date of each dispute and kept with contract files or other pertinent records drafted for in the course of business. Here, the memorandum was made presumably in preparation for trial or as a final effort to detail and resolve disputes. Business records must be made as a regular practice and it seems that