⚡ 10-Second Rule
A business's routine records can come into court, because businesses need their own everyday logs to be right.
🧒 ELI-10 Scene
Rosa's Pizzeria keeps an order notebook by the phone. Whoever takes the call writes the order down right away. Rosa trusts that notebook completely. If it were wrong, pizzas would go to the wrong houses and the shop would lose money. Now imagine Rosa writes a special note two weeks after a customer complains, just to win the argument. That note is different. It wasn't made to run the shop. It was made to win a fight. Courts trust the notebook, not the fight-note.
⚖️ Actual Rule
Under Federal Rule of Evidence 803(6), a record of an act, event, condition, opinion, or diagnosis is admissible regardless of the declarant's availability 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; (C) making the record was a regular practice of that activity;" (D) a custodian, qualified witness, or Rule 902(11)/(12) certification lays the foundation; and "(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Everyone supplying the information must act under a business duty; an outsider's statement inside the record is a second layer of hearsay needing its own exception under FRE 805. The Supreme Court held in Palmer v. Hoffman, 318 U.S. 109 (1943), that an accident report prepared primarily for litigation, not for running the business, falls outside the exception. FRE 803(7) admits evidence that a matter is missing from such a record "to prove that the matter did not occur or exist," if records were regularly kept for matters of that kind and no untrustworthiness is shown.
ELI-10 translation: routine logs made to run the business come in; notes made to win lawsuits stay out. [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
🔍 Ask These Questions
- Is this a record of an act, event, condition, opinion, or diagnosis kept by a business or organization? (Is it a real log, file, or entry — not just someone's memory?)
- Was it made at or near the time of the event? (Was it written down while things were fresh?)
- Did the information come from someone with knowledge acting under a business duty? (Did a worker who saw it, or a chain of workers, feed in the facts?)
- If an outsider — a customer, a bystander — supplied a fact, does that inner statement have its own exception? (A stranger's words inside the log need their own door — FRE 805.)
- Was making this kind of record a regular practice of the business? (Does the business always write these, or was this a one-time special?)
- Is the foundation laid by a custodian, qualified witness, or certification? (Someone who knows the filing system vouches for it — or a sworn paper does.)
- Does the opponent show the record is untrustworthy — especially prepared for litigation? (A record made to win a lawsuit is a fight-note, not a logbook.)
⚠️ Bar Trap
Exam language: Examiners dress a litigation-driven report in business-record clothing — a post-accident investigation "required by company policy" and routed to the legal department — and bait you into admitting it because it looks regular. A second favorite: a record reciting what a customer or bystander said, where the outsider's statement is hearsay within hearsay and needs its own exception.
ELI-10: Ask why the business made the paper. If the honest answer is "to win the coming lawsuit," the door closes. And check who fed in each fact. A stranger's words inside a company log still need their own door.
🧪 Question
A cyclist sued Redline Freight Co. for negligence after a collision with one of its delivery trucks. At trial, Redline offers a "Driver Incident Report" prepared by its safety officer two days after the collision. A standing company policy requires the safety officer to prepare such a report after every accident "for transmission to the company's counsel for use in defending claims." The report, based on the safety officer's inspection of the scene, states that the cyclist swerved into the truck's lane. The cyclist objects on hearsay grounds, and Redline invokes the business-records exception. The safety officer is present in court.
Should the court admit the report?
(A) Yes, because the report was made near the time of the event pursuant to a standing company policy by someone with knowledge. (B) Yes, because the safety officer is available in court and subject to cross-examination. (C) No, because the report was prepared primarily in anticipation of litigation rather than for the systematic conduct of the business. (D) No, because an accident report can never qualify as a business record.
Answer: (C). Under FRE 803(6)(E) and Palmer v. Hoffman, a report generated for the company's litigation defense — not for running the freight business — bears the circumstances-of-preparation untrustworthiness that defeats the exception, even if making such reports is routine.
💡 Why the Wrong Answers Are Wrong
- (A) recites elements (A)-(C) but ignores element (E): a regular policy of preparing litigation reports does not launder the litigation motive.
- (B) confuses the declarant's availability with admissibility; FRE 803 exceptions do not turn on availability, and cross-examination cannot cure an inadmissible document.
- (D) is overbroad; accident records made for genuine operational purposes, such as routine safety maintenance logs, can qualify.
- ELI-10: The misconception is thinking "the company always writes these" is enough. The log must serve the business, not the lawsuit.
