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I'm having problems find case law about business records of evidence. I've read that one entity cannot take a record of another entity, even if legally transfer, and call it their own. Without them originating the item, it is considered hearsay. Is this correct or do transferred documents hold up as a regularly conducted activity? Here is AZ rule on this. Just need help find finding case law and I'm drawing a blank.

 

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

 

Also, I was looking for case law to support summarized evidence and the fact that the Plaintiff must make available the unredacted version of the evidence. Here is the rule on that....

 

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

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Lacking access to we$tlaw or similar tools I find Google scholar and a favorite search engine can produce some good case law leads. There are other free online tools for finding case. One is http://www.plol.org. A favorite search engine would likely find more case law search tools.

 

Many times the search engine will come up with an attorney written article with some applicable case law as well as finding applicable cases.

 

Searching AZ courts for  "Ariz. R. Evid. 803(6)" in Google scholar recently produced 26 results. I would think some of them may provide some useful case law. Other searches may produce other results. Rule 803 (with or without quotes might make sense.) On scholar there are advanced search functions under the little pull-down triangle in the upper right corner of the page.

Discover v. Jankowski is a memorandum decision that covers some of the appeal courts thinking on AZ Rule 803(6). In Jankowski the  appeals court cites State v. McCurdy, 169 P.3d 931, 216 Ariz. 567 (Ct. App. 2007).

 

@jmkglloyd

 

Read the MSJ written by @Harry Seaward.  He addresses the business records and 803(6).

 

It's post #280 of the link:

 

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona/page-14

I have not read through the attached pdf file in post #280 titled "First Amended Motion for Summary Judgment_Redacted" but my guess is it is worth a close read. A quick scan found that one 803(6) case law cited was from the B.A.P 9th Circuit In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005). It also cites AZ cases.

 

So add that to the list of where to find supporting case law, the CIC forum. :-)

 

It appears that Fed Rule 803 is not identical to AZ Rule 803. This article speaks to some differences: http://www.sandersandparks.com/CM/AttorneyArticles/AttorneyArticles87.asp "Generally, the Arizona Rules of Evidence follow the Federal Rules regarding hearsay. However, Arizona Rules 801(d) and 803(6) contain significant differences."
 

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@Credator

 

He should also check out the Villas at Hidden Lakes case.  I believe it's referenced in Harry's MSJ.

Yep. It is also the last one listed on page one in the google scholar search I suggested: "Searching AZ courts for "Ariz. R. Evid. 803(6)" in Google scholar recently produced 26 results."

 

On another note... memorandum decisions are often overlooked when looking for supporting case law but I find they are often excellent decisions to review and seek out the supporting case law cited by the court in support of their decision.

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did they include an affidavidt from the OC?  look here in your rules

 

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;

( B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

 

 

A states the information to them must have been made by someone with knowledge--If they only have the records, then the affidavidt from the JDB cannot be the one with person of knowledge, as they don't work for the OC.  How do they know the records were true and correct when they got them?  They don't.  So they need an affidavidt from the OC as well as the JDB.

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@shellieh98

 

803(6) says that the person making the affidavit must attest that the records were made by someone with knowledge or that they were made from information transmitted by someone with knowledge.

 

The rule doesn't say that the person making the affidavit must be the person who made the records or has knowledge of them.  It's only about showing that the records are what the offerer claims them to be.

 

Some courts are very lenient with 803(6).  They allow a JDB to authenticate the records of an OC if the JDB incorporated the records into their own records and relied upon them.

 

Other courts are more strict.  They say the affiant has to have some knowledge of how the records were created. 

 

It all depends upon how one's courts have ruled.

 

Personally, I don't believe one business should be allowed to authenticate the records of another business, but the judges don't care what I think.

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No affidavit. Should I ask for one? I don't think the OC will provide one. The Bill of Sale states that it implies no warranties or representation of correctness. They state they have witnesses from the JDB but no affidavit from either.

If this is Cavalry that you're doing battle with, the affidavit will show up with the MSJ in support of the exhibits they attach thereto.

Spend some time reading through my thread and you can head off some of their nonsense before they have a chance to get the first word on it. I posted all of my significant pleadings and you are free to use them as a guide on your journey with these guys.

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona/

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  • 2 weeks later...

If this is Cavalry that you're doing battle with, the affidavit will show up with the MSJ in support of the exhibits they attach thereto.

Spend some time reading through my thread and you can head off some of their nonsense before they have a chance to get the first word on it. I posted all of my significant pleadings and you are free to use them as a guide on your journey with these guys.

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona/

 

Thanks HS. It is indeed Cavalry.

I have looked over your posts before and really need to again.

My pretrial is this week which I have been to twice with these goons before on their attempt so no worries here. Deny, deny, and refuse settlement is the name of the game at pretrial.

The trial date is set for June which is whole different issue for me.

 

Thanks again!!!

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I have found several bankrupcy case trials that discuss evidence, SOL, and other items where a plaintiff has won to get the debt resolved. It's the same thing we go through here just in a different forum. Can these types of case also be cited?

Anything can be cited.  The argument will be whether or not it's binding on your court.  In AZ justice court, most other AZ state court rulings are binding.  AZ has two appeals courts (Division 1 and Division 2).  If there's ever a conflicting ruling between the two, it would probably be decided the court in your appeals Division is the governing case law.  Your Appeals Division is determined by what county you're in.

 

http://www.azcourts.gov/guidetoazcourts/HowArizonaCourtsareOrganized.aspx

(Thanks to @BV80 for showing me this!)

 

Bankruptcies go down in federal court.  I don't know how precedent in those cases cross over to state/county court, but I would have to think if you're in the 9th District (which we are here in AZ) there is nothing on the books from lower courts on the matter, 9th circuit federal caselaw would be rather persuasive, if not binding.  I cited a 9th circuit BK case in my MSJ.  I'm interested to see how Plaintiff will attack it and how the judge will see it.

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