Quick question on a rule

[shellieh98]

I know I've seen it, people have talked about it here, but now I can't find it.  I think the federal rule is the same rule as my state rule, but I need a number.  

 

Does anyone know the rule about not being able to create a business record for or in anticipation of litigation?  Im not talking about an affidavidt, but a record they will try to use to as a business record.  

In writing my motion in limine, and going through all the pre evidence, the redacted file is alreay listed as exhibit A on it's face.  Do you name your business records Exhibit A? So I wanna throw it out there.

[BV80]

@shellieh98

 

I don't know that "anticipation of litigation" is actually a rule.   It's based on 803(6) which states that a business record must be created in the regular course of business.  That means the business creates it on a regular basis for their own records.

 

A record prepared for the sake of litigation can be allowed under dertain circumstances.  BUT, a self-serving "business" record (one that strictly supports the party's claims and that is NOT created on regular basis for that party's business) is not considered a business record under 803(6).

 

In contrast, to be admissible as a business record, a document must have been prepared in "the regular practice of that business activity." CRE 803(6); see Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984)(business records exception does not apply to self-serving information prepared in anticipation of litigation).

[shellieh98]

ahh, thank BV80.  I guess technically it is created as a regular part of their business given the business they are in lol.  (sic) That must be what I was thinking of.  Gonna go with it, nothing to lose. Thanks! And thanks for the colo. case law to go with.

[Aticnib]

That's called the "business exception rule".  It's in my MIL and Trial Brief.  Lots of case laws in there.  See the thread on Midland Documents I started.  I shared the documents.

[nascar]

A document prepared for purposes of litigation is not a business record because it is lacking in trustworthiness. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).

 

 

(Even though this cite is nearly 70 years old, it is still good law.)

[shellieh98]

Thank you!

[Harry Seaward]

@BV80

@nascar

Sorry to knock the dust off this one, but in the first post of this thread, @shellieh98 said "Im not talking about an affidavid".

 

Are affidavits not subject to this rule?  If not, why not?

[BV80]

@Harry Seaward

 

I'm not sure I can explain it adequately, and I definitely don't know all the facts, but I think these are some of the basics.

 

An affidavit can be prepared for litigation by one of the parties to the lawsuit if its purpose is to authenticate business records, support summary judgment, or controvert claims by the other party.  It's not being offered as a business record.  A business record affidavit made by the plaintiff is being offered to authenticate business records.   An affidavit in support of summary judgment is to support a party's motion.   Your own affidavit denying the other party's claims can be made after the lawsuit begins.

 

However, if a party tries to introduce as a business record an affidavit that was recently made by someone else, then you object because a record that was recently made could have been made for the purpose of the lawsuit (litigation).   For instance, a JDB might try to introduce an OC affidavit as a business record.  What's the date on that affidavit?  Is it recent?  Was it made long after the sale?   If that OC affidavit was made just for the sake of the lawsuit, then it cannot be a business record.  Of course, there might be exceptions under which such an affidavit might be allowed as a business record.  I guess it might depend on the circumstances.

[Harry Seaward]

@BV80

Yep, got it.  When I first glanced through a case, I thought the affidavit was made by the plaintiff''s employee.  I re-read the case with a little more attention to detail and the affidavit in question was made by a non-party to the lawsuit (previous owner of the debt) and was made 2 years before the lawsuit was filed.