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"Redacted by Employee of JDB" -- a red flag?

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A JDB recently set forth a self-serving version of an agreement (it's not the correct one, but has terms the JDB wants).

 

At the bottom of the agreement copy a JDB-underling hand wrote the phrase: "Copy Redacted by Employee of Fritz Law Firm".

 

It does not appear as though any information was actually redacted from the agreement text nor personal information.

 

 

Is the above handwritten statement a disclosure required by the courts --- but should set off red flags for the Defendant?  

 

For instance, could I object to the copy based on rules of evidence, and the fact that the JDB has no personal knowledge of the account, and that the JDB-supplied/redacted copy should be stricken by the court?

 

 

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I'm not exactly sure where you're going, but it doesn't sound like the lack of personal knowledge is a part of the court record yet and the only ways it will become part of the record is if a) they freely admit it in their pleadings (which they won't), B) they admit it in response to your discovery requests (not likely) and you attach the responses to a MTD or MSJ or something, or c) you get the witness on the stand and he/she admits it under cross examination.

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Objection your honor, the affiant is not in court and I cannot cross examine a piece of paper. With out the person that signed the affidavit in court to testify to the accurateness of the affidavit the affidavit is hearsay and should not be entered into evidence.

 

They will then claim a business exception to the hearsay rule, you will the object again on the grounds that an affidavit is created for the sole purpose of litigation and not in the ordinary course of business.

 

It is really hard to speculate when I do not know what they are suing for and how they pleaded the case. Are they suing for breach of contract, account stated, common counts or something else? But any way the objections above will suffice.

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@BTO429

 

They will then claim a business exception to the hearsay rule, you will the object again on the grounds that an affidavit is created for the sole purpose of litigation and not in the ordinary course of business.

 

Any affidavit used in court is created for the purpose of litigation.   That's allowed. 

 

An affidavit is not a business record, so it doesn't have to be created in the regular course of business. 

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@BTO429

 

 

Any affidavit used in court is created for the purpose of litigation.   That's allowed. 

 

An affidavit is not a business record, so it doesn't have to be created in the regular course of business. 

I know this, but when the op object they will try top argue it is a business record. An affidavit does not fall under the business exception to hearsay rule.

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@BTO429

 

 

I know this, but when the op object they will try top argue it is a business record. An affidavit does not fall under the business exception to hearsay rule.

 

No, they won't.  Even a JDB attorney knows that an affidavit is not a business record.  They'll argue the sufficiency of the affidavit to serve it's purpose which is to authenticate business records and support summary judgment.

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@BTO429

 

they have tried it in the past just giving the op arguments in case they do.

 

Without the affiant there to attest to the affidavit they can argue sufficiency all they want,

 

No, there doesn't have to be a live witness.  The business records exception and the summary judgment rule both allow affidavits.  In fact, the summary judgment rule requires it.  No where does either of those rules state that a live witness is required to testify.  Many courts have allowed business records to be admitted based upon the sufficiency of an affidavit.

 

If live witnesses were required no matter what, affidavits would be a waste of time.

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Hi, I have been reading this thread and feel like this seems to be a difficult part of litigation which I don't understand. Can either of you posting here recommend a thread on this board to start understanding more basics on what to do in regards to calling witnesses, objecting to witness testimony,affadavits, business record and exception to hearsay rule?  I am wondering if I need to address who a jdb has for witnesses in a pretrial memorandum? Should I reserve the right to have that party as my witness?  Hope I don't interrupt your discussion too much with my question but you both seem to be very knowledgeable on this subject.  thanks in advance

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@needahand

 

You need to start researching how the higher courts in your state have ruled on the business record exemption.  In most states, that rule is 803(6).  The purposes of the rule are to show that the record is, indeed, a business record and that the record is what the party offering it purports it to be.

 

The language in the rule includes that the record was made in the regular course of business, that it was the regular practice of the business to make the record, etc.  All of that shows that it's a record that the business generates on a regular basis for the purpose of that business's operation. 

 

Some courts will not allow a person from one business to testify as to another business's records.  But other courts will allow it.  That's why you have to see how your courts have ruled.

 

In regard to JDB witnesses, a witness only testifies in a deposition or at trial.  You want to try to win before a trial.  If your courts don't tend to allow 3rd party witnesses to testify (either live or by affidavit) as to another business's records, you can file a motion to strike any OC business records. 

 

Most JDBs tend to  offer one affidavit for the purposes of authentication of business records and support for summary judgment.  See if the language in the affidavit complies with the business record exemption.  When researching case law, see if your courts require some kind of knowledge in order to authenticate the records.  Most courts don't require personal knowledge to authenticate, but they might require some kind of knowledge.

 

However, in support of summary judgment, the affiant must have personal knowledge.  Carefully read the language in the affidavit to see if the affiant claims to have personal knowledge or if his statements are based upon information and belief.  There's a difference.  Also, see what he claims to have personal knowledge about.  Is it about the OC records?  Or is it about the JDB's business.  Again, there's a difference.

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@needahand

 

You need to start researching how the higher courts in your state have ruled on the business record exemption.  In most states, that rule is 803(6).  The purposes of the rule are to show that the record is, indeed, a business record and that the record is what the party offering it purports it to be.

 

The language in the rule includes that the record was made in the regular course of business, that it was the regular practice of the business to make the record, etc.  All of that shows that it's a record that the business generates on a regular basis for the purpose of that business's operation. 

 

Some courts will not allow a person from one business to testify as to another business's records.  But other courts will allow it.  That's why you have to see how your courts have ruled.

 

In regard to JDB witnesses, a witness only testifies in a deposition or at trial.  You want to try to win before a trial.  If your courts don't tend to allow 3rd party witnesses to testify (either live or by affidavit) as to another business's records, you can file a motion to strike any OC business records. 

 

Most JDBs tend to  offer one affidavit for the purposes of authentication of business records and support for summary judgment.  See if the language in the affidavit complies with the business record exemption.  When researching case law, see if your courts require some kind of knowledge in order to authenticate the records.  Most courts don't require personal knowledge to authenticate, but they might require some kind of knowledge.

 

However, in support of summary judgment, the affiant must have personal knowledge.  Carefully read the language in the affidavit to see if the affiant claims to have personal knowledge or if his statements are based upon information and belief.  There's a difference.  Also, see what he claims to have personal knowledge about.  Is it about the OC records?  Or is it about the JDB's business.  Again, there's a difference.

Thank you very much BV80!  I have researched the rules on biz records and have a decent grip on those, but not the exception and not from higher court rulings so will get on that.  Otherwise they haven't provided anything to support their claims.  The witness was named as the keepr of records or an unnamed alternative for the jdb testifying on the assignment and how they determined the $. I am feeling pretty helpless but ultimately, is the only thing I can do is to research these rulings until they produce their affadavit?  Looks like they can wait until 10 days before trial to do that.  Thanks again for your help

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