Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts

How to use this toolkit

These are working papers, drafted for federal civil cases. Every template needs editing to fit the facts. Bracketed text is a placeholder. A template with a false or unknown fact should be fixed or dropped, because a person signs these under penalty of perjury. If you are in state court, check the local counterpart first, since certification and notice rules differ.

Read Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence for the law behind the forms, Laying the Foundation for Business Records and Defeating Hearsay Objections: A Practical Guide for the sequence, and Hearsay and Business Records Checklist: A Practical Checklist for the task list. For message content specifically, Digital Message Evidence Toolkit: Collection Protocols, Authentication Declarations, and Rule 902 Certifications has collection protocols that pair with Tools 3 and 4.

Contents

1. Tool 1: Exhibit route worksheet
2. Tool 2: Rule 902(11) certification
3. Tool 3: Rule 902(13) certification for system output
4. Tool 4: Rule 902(14) certification for copied data
5. Tool 5: Rule 902(12) foreign records clause
6. Tool 6: Letter to a nonparty custodian
7. Tool 7: Notice of intent to offer certified records
8. Tool 8: Records stipulation
9. Tool 9: Requests for admission on genuineness and foundation
10. Tool 10: System data questionnaire
11. Tool 11: Foundation scripts for less common situations
12. Tool 12: Hearsay response chart
13. Tool 13: Custodian deposition outline
14. Tool 14: Objection to a certification
15. Tool 15: Rule 56(c)(2) objection and response
16. Tool 16: Rule 1006 summary template and preparer declaration
17. Tool 17: Rule 107 legend and exchange language
18. Tool 18: Limiting instruction and offer of proof

Tool 1: Exhibit route worksheet

Purpose: Force a route decision for each exhibit. Owner: Associate or trial paralegal. Timing: Open at the start of discovery. Review at the close of fact discovery and before Rule 26(a)(3) disclosures.

Drafting notes. If the "sentence" column is empty for a document offered by a person, ask why the document matters. A non-truth use needs an instruction (United States v. Cone, 714 F.3d 197 (4th Cir. 2013)). Keep separate rows for separate declarants in one thread, as in United States v. Safavian, 435 F. Supp. 2d 36 (D.D.C. 2006). Use Fed. R. Evid. 805 to flag each level.

Tool 2: Rule 902(11) certification

Purpose: Establish authenticity and the Rule 803(6) foundation without a live witness. Owner: Drafted by counsel; signed by a custodian or other qualified person who has read and corrected it. Timing: Obtain before the discovery cutoff if possible, and serve with Tool 7.

UNITED STATES DISTRICT COURT
[DISTRICT]

[PLAINTIFF], Plaintiff,
v.                                    Case No. [NUMBER]
[DEFENDANT], Defendant.

CERTIFICATION OF [NAME] UNDER FEDERAL RULES OF EVIDENCE 803(6) AND 902(11)

I, [NAME], state:

1. I am employed by [COMPANY] as [TITLE]. I have held that position since
   [DATE]. In that role I [DESCRIBE WORK WITH THESE RECORDS].

2. I am a custodian of the records described below or am otherwise qualified
   to make this certification, because I am familiar with how [COMPANY]
   creates, receives, and keeps these records, including during [PERIOD].
   [If tenure is shorter than the period: I learned the practices in place
   during that period from (SOURCE) and confirmed them by (METHOD).]

3. Attached as Exhibit A, or identified by the production numbers [RANGE], are
   [NUMBER] pages of [DESCRIPTION OF RECORDS] (the "Records"). They are true
   copies of records kept by [COMPANY].

4. The Records were made at or near the time of the acts or events they
   record, by, or from information transmitted by, persons with knowledge of
   those matters.

5. The Records were kept in the course of [COMPANY]'s regularly conducted
   activity of [DESCRIBE ACTIVITY].

6. Making the Records was a regular practice of that activity. Specifically,
   [HOW THE RECORD IS MADE, BY WHOM, AND WHEN].

7. [IF APPLICABLE: The Records were generated from data stored in (SYSTEM) by
   a query run on (DATE) by (PERSON). The query did not alter the underlying
   data. The output shows (FIELDS). The underlying data were entered as
   described in paragraphs 4 to 6.]

8. [IF APPLICABLE, RECEIVED DOCUMENTS: Some Records were received from
   (THIRD PARTY). In the regular course, (COMPANY) receives such documents,
   checks them by (METHOD), incorporates them into its files, and relies on
   them for (PURPOSE). (COMPANY) has a financial interest in their accuracy
   because (REASON).]

I declare under penalty of perjury that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE].

_______________________
[NAME]

Drafting notes. The statement that Rule 902(11) needs a certification complying "with a federal statute" is usually met through the closing language of 28 U.S.C. § 1746. Outside the United States the § 1746 wording differs, so use its alternate form or Tool 5. Rule 902(11) relies on Rule 803(6)(A) through (C); paragraphs 4 to 6 track them. Paragraph 2 addresses the problem in Rambus, Inc. v. Infineon Technologies AG, 348 F. Supp. 2d 698 (E.D. Va. 2004), where declarations did not show knowledge of how records were created. A qualified person need not be the maker (Thanongsinh v. Board of Education, 462 F.3d 762 (7th Cir. 2006)).

Paragraph 7 reflects U-Haul International, Inc. v. Lumbermens Mutual Casualty Co., 576 F.3d 1040 (9th Cir. 2009) and United States v. Fujii, 301 F.3d 535 (7th Cir. 2002). Paragraph 8 reflects MRT Construction Inc. v. Hardrives, Inc., 158 F.3d 478 (9th Cir. 1998), Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999), and United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007). Delete it if the facts are absent. Do not use this form for a platform's user content without first reading United States v. Browne, 834 F.3d 403 (3d Cir. 2016) and United States v. Gal, 606 F. App'x 868 (9th Cir. 2015): limit the certification to what the provider actually recorded.

Tool 3: Rule 902(13) certification for system output

Purpose: Authenticate a record generated by an electronic process or system. Owner: An engineer, administrator, or examiner, with counsel. Timing: Start early; a technical opponent may reasonably need time to respond.

CERTIFICATION OF [NAME] UNDER FEDERAL RULE OF EVIDENCE 902(13)

I, [NAME], state:

1. I am [TITLE] at [COMPANY]. My qualifications include [TRAINING AND
   EXPERIENCE]. I am responsible for [SYSTEM ROLE].

2. Exhibit [X], identified by [BATES OR HASH], is a record generated by
   [SYSTEM NAME AND VERSION] (the "System").

3. The System works as follows: [PLAIN DESCRIPTION OF WHAT THE SYSTEM DOES,
   WHAT TRIGGERS AN ENTRY, AND WHICH FIELDS IT WRITES WITHOUT HUMAN INPUT].

4. The following fields are generated automatically: [FIELDS]. The following
   fields are entered by people: [FIELDS, OR "NONE"].

5. The System produces an accurate result. I base this on: [FACTS, SUCH AS
   TEST RESULTS, RECONCILIATION TO OTHER SOURCES, MONITORING, VENDOR
   CALIBRATION, AND COMMERCIAL ACCEPTANCE]. System time is set by [SOURCE]
   and recorded in [TIME ZONE].

6. During [PERIOD], I am aware of [NO FAILURES AFFECTING THESE RECORDS / THE
   FOLLOWING EVENTS, WHICH HAD THE FOLLOWING EFFECT: ...].

7. I generated Exhibit [X] on [DATE] by [METHOD]. I did not change its content
   except [NONE / DESCRIBE, SUCH AS FORMAT CONVERSION].

I declare under penalty of perjury that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE].

_______________________
[NAME]

Drafting notes. Rule 902(13) is the certification counterpart to Rule 901(b)(9). Paragraph 4 is the most important practical line. The machine-statement cases (United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015); United States v. Washington, 498 F.3d 225 (4th Cir. 2007); United States v. Channon, 881 F.3d 806 (10th Cir. 2018)) protect only fields no person asserted. The committee note makes clear the certification proves authenticity only, and the opponent may still raise hearsay as to the people-entered fields. Paragraph 6 is uncomfortable but useful, because disclosing a known failure beats having it elicited on cross. Paragraph 5 answers the concern in In re Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005). Do not use this form for generative AI output without an expert's input. A person who can honestly say it "produces an accurate result" is hard to find, and the Advisory Committee's work on revised proposed Rule 707 signals the same doubt.

Tool 4: Rule 902(14) certification for copied data

Purpose: Show a copy is identical to its source through digital identification. Owner: Forensic examiner or e-discovery technician who made or verified the copy. Timing: Hash at collection; sign when exhibits are finalized.

CERTIFICATION OF [NAME] UNDER FEDERAL RULE OF EVIDENCE 902(14)

I, [NAME], state:

1. I am [TITLE] at [EMPLOYER]. My qualifications include [CERTIFICATIONS,
   TRAINING, YEARS].

2. On [DATE], at [LOCATION], I copied data from [DEVICE, MEDIUM, OR FILE,
   WITH MAKE, MODEL, SERIAL NUMBER, OR PATH] using [TOOL AND VERSION].

3. A hash value is a fixed-length value computed from a file's or device's
   digital contents. A change to the contents produces a different value.
   If two hash values computed with the same algorithm match, it is highly
   improbable that the contents differ.

4. Using [SHA-256 / OTHER], I computed these values:
   Source: [VALUE]
   Copy:   [VALUE]
   The values match.

5. Exhibit [X] is [THE COPY / A FILE EXTRACTED FROM THE COPY, WITH HASH VALUE
   (VALUE), WHICH MATCHES THE FILE IN THE COPY].

6. I did not alter the data. [DESCRIBE WRITE BLOCKER OR EQUIVALENT.]

I declare under penalty of perjury that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE].

_______________________
[NAME]

Drafting notes. Rule 902(14) needs a process of digital identification and a qualified person. United States v. Dunnican, 961 F.3d 859 (6th Cir. 2020) is a clean illustration. The committee note also leaves the opponent free to challenge hearsay in the drive's contents. So this form says nothing about who created the data, or whether it is true. If extraction software generates a report, check that the report reflects the source, and consider Tool 3 as well for the tool's process.

Tool 5: Rule 902(12) foreign records clause

Purpose: Adapt Tool 2 for foreign records in a civil case. Owner: Counsel, with local counsel where needed. Timing: Allow extra time for translation and logistics.

Replace the signature block in Tool 2 with:

I make this certification knowing that a false statement in it would subject me to a criminal penalty under the laws of [COUNTRY], where this certification is signed. [Cite the local provision after confirming it with local counsel.]

Drafting notes. Rule 902(12) requires a signature "in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed," and it carries the 902(11) notice requirement. It is limited to civil cases. In criminal cases look to 18 U.S.C. § 3505. Alternatively, § 1746(1) has a form for declarations executed outside the United States. Serve certified translations with the certificate.

Tool 6: Letter to a nonparty custodian

Purpose: Get a usable certificate from a records department at the same time as the records. Owner: Paralegal, under attorney signature. Timing: Send with the Rule 45 subpoena, after the notice to parties required by Rule 45(a)(4). Expect delays.

[DATE]

Custodian of Records [COMPANY] [ADDRESS]

Re: [Case name], No. [NUMBER] ([COURT]); Subpoena for records

Dear Custodian:

The enclosed subpoena asks for [DESCRIPTION]. We have tried to keep it narrow. If you hold the records in a form other than that requested, please call me before you do extra work.

We also enclose a short certification. If it is accurate, signing it may avoid any need to call a company witness at trial. Please correct anything inaccurate. You may substitute your own form if it covers the same points. The signer need not have created the records, but should be familiar with how your company creates and keeps them.

We will pay reasonable copying costs on invoice. Please contact me at [PHONE/EMAIL] with questions. We represent [PARTY] and cannot give you legal advice. You may wish to consult your own counsel.

Sincerely, [ATTORNEY]

Drafting notes. Attach Tool 2, cut down. A subpoena served to a nonparty carries obligations under Fed. R. Civ. P. 45(d) to avoid undue burden. Banks, carriers, and hospitals may have their own forms and privacy conditions, so ask early. Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege has the subpoena forms and privilege-related language. If the company won't sign, consider a deposition on written questions under Fed. R. Civ. P. 31. Message content from platforms is restricted by 18 U.S.C. § 2702, so don't plan on this route for that.

Tool 7: Notice of intent to offer certified records

Purpose: Satisfy the written-notice requirements in one paper. Owner: Trial counsel. Timing: As early as practicable, and at the latest with pretrial disclosures unless your order says otherwise.

[CAPTION]

NOTICE OF INTENT TO OFFER CERTIFIED RECORDS AND SUMMARIES
(Fed. R. Evid. 807, 902(11), 902(13), 902(14), 1006)

PLEASE TAKE NOTICE that [PARTY] intends to offer the following at the
[trial / hearing] of this action:

A. Certified records, Rule 902(11) and 803(6)
   Exhibit [X] ([DESCRIPTION]; [BATES]), certification of [NAME], [DATE].

B. Certified system output, Rule 902(13)
   Exhibit [X] ([DESCRIPTION]; [BATES]), certification of [NAME], [DATE].

C. Certified copies of data, Rule 902(14)
   Exhibit [X] ([DESCRIPTION]; [HASH]), certification of [NAME], [DATE].

D. Summaries, Rule 1006
   Exhibit [X], summarizing [DESCRIPTION]. Underlying materials: [BATES].

E. Statements under Rule 807 (in the alternative)
   Exhibit [X]. Declarant: [NAME]. Substance: [SUMMARY]. Basis: [BRIEF FACTS
   ON TRUSTWORTHINESS AND WHY THIS IS THE MOST PROBATIVE EVIDENCE REASONABLY
   AVAILABLE].

The records and certifications [are served with this notice / were produced
at (BATES) / are available for inspection at (PLACE) on reasonable notice to
the undersigned]. Please contact the undersigned by [DATE] with any objection
so that the parties can confer and raise any dispute with the Court in
advance of trial.

Dated: [DATE]
[SIGNATURE BLOCK AND CERTIFICATE OF SERVICE]

Drafting notes. Rule 902(11) requires reasonable written notice before the trial or hearing and making the record and certification available, "so that the party has a fair opportunity to challenge them." Rules (12), (13), and (14) adopt that requirement. Rule 807(b) needs a writing that gives the substance and the declarant's name; the address is no longer required. Rule 1006(b) requires availability of the originals or duplicates. Section E is optional, and including it as an alternative does not concede that 803(6) fails. Date the notice to leave time for your opponent to respond and for you to line up a live witness if the response is a real one. If a deadline has passed, consider Federal Deadline Toolkit: Calendaring Protocols, Extension Motions, and Excusable Neglect Declarations.

Tool 8: Records stipulation

Purpose: Remove custodians from the trial. Owner: Trial counsel. Timing: Propose after production and renew before the pretrial conference.

The parties stipulate, for purposes of this action only:

1. The documents on Schedule A are authentic under Fed. R. Evid. 901.
2. The documents on Schedule B are authentic and satisfy Fed. R. Evid. 803(6)(A) through (D). No custodian need be called. Each party reserves objections based on Rule 803(6)(E), relevance, Rule 403, and any hearsay contained within them other than the first level.
3. The documents on Schedule C are statements of the party that produced them, for purposes of Fed. R. Evid. 801(d)(2), when offered by an opposing party.
4. Copies and printouts may be used in place of originals. Fed. R. Evid. 1001(d), 1003.
5. A party may withdraw a document from a schedule by written notice no later than [DATE], and the opposing party may then call a custodian out of order.

Drafting notes. Paragraph 2 keeps the second-level fight alive under Rule 805, which many parties will insist on. Paragraph 3 is the one most likely to be refused. If so, serve Tool 9 instead. Paragraph 4 draws from Rule 1001(d) and Rule 1003. Paragraph 5 prevents a trap on either side.

Tool 9: Requests for admission on genuineness and foundation

Purpose: Establish foundation facts through the opponent's own response. Owner: Associate. Timing: At least 30 days plus a margin before the discovery cutoff.

REQUEST NO. 1. Admit that each document on Schedule A is a true and correct copy of a document from Defendant's files.

REQUEST NO. 2. Admit that [AUTHOR] was Defendant's employee on the date of the document at [BATES], and that its subject was within the scope of [AUTHOR]'s employment.

REQUEST NO. 3. Admit that [AUTHOR] sent the document at [BATES] from the account [ADDRESS].

REQUEST NO. 4. Admit that the documents on Schedule B were made at or near the time of the matters they record, by or from information transmitted by persons with knowledge.

REQUEST NO. 5. Admit that the documents on Schedule B were kept in the course of Defendant's regularly conducted activity, and that making them was a regular practice of that activity.

INTERROGATORY. For any Request above not admitted without qualification, state the facts on which the denial or qualification rests.

Drafting notes. Fed. R. Civ. P. 36(a)(1)(B) expressly reaches the genuineness of described documents, and Rule 37(c)(2) can shift the cost of proving what was denied. Request 2 supplies the independent proof that Rule 801(d)(2) requires for scope. Keep schedules tight, because overbroad requests draw boilerplate. Check any limit on the number of interrogatories in Rule 33 before adding the companion.

Tool 10: System data questionnaire

Purpose: Learn enough about a system to choose a route and find a witness. Owner: Counsel interviewing IT, data, or finance staff. Timing: Before any export is used for anything in the case.

System and scope

• System name, vendor, version, and any version changes during the period
• What events create a record, and which fields are written by whom
• Data dictionary available? Field meanings during the period?
• Retention period. Anything rolled over or purged?

Inputs

• Human-entered fields: by whom, when, with what validation or training
• Machine-generated fields: from what source
• Clock source, synchronization, and time zone handling
• Imports from other systems or vendors (boarded data)

Integrity

• Can users edit or delete entries? Is that logged? Who has access?
• Known outages, failed jobs, migrations, or bugs during the period
• Reconciliations to other sources, audits, and error rates
• Does the business rely on it for money, compliance, or operations?

Export

• Production system or reporting copy? When was the copy refreshed?
• Query or report name. Who wrote it, and what filters or joins does it use?
• Computed or derived fields, and how they are derived
• Any AI-generated or AI-summarized fields? Is a human review step recorded?
• Hash of the export. Where is the export stored?

People

• Who can explain this to a jury? Who can sign? Who owned it at the time?

Drafting notes. The answers feed Tool 3, paragraph 3 of Tool 2, and the deposition outline for your own witness. In re Vinhnee quotes an eleven-step foundation that this list tracks in substance. Sort the answers against the distinction drawn in Lizarraga-Tirado between an assertion the program makes and one that a person makes.

Tool 11: Foundation scripts for less common situations

Purpose: Short direct examinations for situations in which the ordinary questions do not fit. Owner: Examining attorney. Timing: Rehearse with the witness before trial.

The guide contains the ordinary record, third-party, system, email, and absent-entry scripts. These cover four situations it does not.

Script 1: Witness employed after the records were made

• Q: When did you start at [COMPANY]? And the records you're holding are dated before that?
• Q: How did you learn how they were kept before you arrived?
• Q: What did you look at to confirm the process was the same? [Manual, system audit, former supervisor.]
• Q: Do the records you're holding look like the ones you work with now? In what ways?
• Q: Were these records maintained as part of the same activity?

Authority: Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991) (witness need not have prepared the records). Keep it factual; a witness who only says "I assume" is not enough.

Script 2: Successor company's inherited records

• Q: How did [SUCCESSOR] come to hold these records?
• Q: What did it do when it received them? [Tested, reconciled, loaded.]
• Q: Has it used them to run the business since? For what?
• Q: Have you found the records accurate when you've checked them against [CUSTOMER STATEMENTS, BANK DEPOSITS]? How often?
• Q: Would there be consequences for [SUCCESSOR] if they were wrong?

Authority: Adefehinti and Air Land Forwarders. Expect closer scrutiny in the debt purchase setting. Defending a Debt Collection Lawsuit: A Practical Guide shows how the other side approaches this.

Script 3: Using the opponent's employee to lay the foundation

• Q: You've worked at [DEFENDANT] for [X] years? What's your job?
• Q: Exhibit [X] came from your company's files? Your name is at the top?
• Q: Writing these reports is part of your job?
• Q: You wrote it on or about the date shown?
• Q: You knew at the time that your supervisor would rely on it?

Authority: Rule 801(d)(2)(D) may make a Rule 803(6) foundation unnecessary. Ask only as much as you need, and call the witness adverse under Rule 611(c). If the witness is outside trial subpoena range, use the deposition, as Designating and Playing Deposition Testimony at Trial: A Practical Guide explains.

Script 4: AI-assisted summary, when you must use one

• Q: What tool generated this summary? Do you know what model it runs?
• Q: What did it receive as input? Do you still have that input?
• Q: Is a person required to review the output? Who reviewed this one?
• Q: What did that person check it against?
• Q: Does the business rely on these summaries for something? What happens if one is wrong?
• Q: Have the summaries been audited? What was the result?

Authority: No rule addresses this directly. The questions try to show a person with knowledge under Rule 803(6)(A), and the inputs raise Rule 805. Courts may want expert testimony under Rule 702 standards; see the discussion in Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination. If at all possible, offer the underlying recording or document, and use the summary as a Rule 107 aid.

Tool 12: Hearsay response chart

Purpose: One-sentence responses at counsel table. Owner: Trial team. Timing: Tailor for each trial. Print and tape inside the trial binder.

And for the opposing side:

Drafting notes. The chart is a reminder, not a brief. Have the case available if the judge asks, and confirm the local circuit's rule before relying on an out-of-circuit citation. Under Rule 103(a)(1), a specific objection must be timely. Rule 104(a) lets the court consider inadmissible material in ruling. The proponent's burden under Bourjaily v. United States, 483 U.S. 171 (1987) is a preponderance.

Tool 13: Custodian deposition outline

Purpose: Pin down how a record is made, for use by either side. Owner: Examining attorney. Timing: Fact discovery, ideally after documents are produced. Use a Rule 30(b)(6) notice if you want the testimony to bind an organization, and Rule 45 for nonparties.

A. Background. Role, tenure, reporting lines; what the witness did to prepare; who else knows more.

B. The activity. What the department does; why it keeps this record; who uses it; what happens if it is wrong; what audits apply.

C. Creation. Who first observes the event; how that gets into the record; time lag, in practice; forms, screens, required fields; training; whether any part comes from outside; how outside information is checked.

D. The particular records. Walk through one exhibit field by field. Who entered this? What does this code mean? Why is this field blank? Has the meaning of a field changed over time?

E. Storage and integrity. System history and migrations; edit and delete rights; logs of changes; backups; retention; incidents.

F. Retrieval. Who ran this report? When? From what source? With what query? Were any fields computed? Would rerunning it today give the same output?

G. Litigation context. When did the company anticipate this dispute? Was any record created, reviewed, changed, or annotated after that date? Did counsel request it? Are there comparable records for undisputed events? (Privilege instructions may arise here; ask only for facts. For the privilege side, see Clawback Toolkit: 502(d) Orders, Clawback Notices, and Privilege Review Protocols.)

H. Third-party data. How received; what verification; what reliance; what would happen if it were wrong; what contract terms govern accuracy.

I. Certification. Who drafted it? Did the witness read it? What is the basis for each paragraph? Did the witness review the attached records?

Drafting notes. Section C tests Rule 803(6)(A). Section G tests Palmer and Sinkovich. Section H tests the adoption cases. Section I applies Rambus. Use Rule 32(a)(3) to offer a party's designee testimony at trial, and Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts to track designations.

Tool 14: Objection to a certification

Purpose: Preserve and explain a challenge to a 902 certification. Owner: Associate, with trial counsel signature. Timing: Promptly after inspection, and within any order's deadline.

[PARTY] objects to the [DATE] Notice and to the certification of [NAME] as to Exhibits [X] on these grounds:

1. Knowledge. The certification does not show that [NAME] knows how the records were created. It states only that [QUOTE]. See Rambus, Inc. v. Infineon Technologies AG, 348 F. Supp. 2d 698 (E.D. Va. 2004).

2. Not records of a regularly conducted activity. Exhibit [X] is [AN EMAIL / A LETTER / A REPORT] not made as a regular practice. United States v. Cone, 714 F.3d 197 (4th Cir. 2013).

3. Prepared for litigation. Exhibit [X] was created on [DATE], after [EVENT], at the request of [PERSON]. Palmer v. Hoffman, 318 U.S. 109 (1943).

4. Outsider information. Exhibit [X] contains statements by [SOURCE], who was under no business duty to report. Fed. R. Evid. 805. Offering party has identified no exception for them.

5. Notice. The notice was served [X] days before [EVENT] and did not allow a fair opportunity to challenge the records, because [SPECIFIC FACTS, SUCH AS NEED FOR SYSTEM DOCUMENTATION].

[PARTY] requests [EXCLUSION / LEAVE TO DEPOSE (NAME) / PRODUCTION OF (MATERIALS)], and is available to confer on [DATES].

Drafting notes. Delete grounds you cannot support. A targeted two-paragraph objection works better than this whole page. Rule 803(6)(E) places the trustworthiness burden on the opponent once the elements are shown, so state your facts. Cite your objection in your Rule 26(a)(3)(B) list too, so it is preserved.

Tool 15: Rule 56(c)(2) objection and response

Purpose: Raise and answer admissibility issues at summary judgment. Owner: Brief writer. Timing: With the opposition or reply, as local rules allow. Check whether your court wants these in the brief, not a separate motion.

Objection:

Under Fed. R. Civ. P. 56(c)(2), [PARTY] objects to Exhibit [X]. The cited sentence is a statement by [DECLARANT], a nonparty, offered to prove [FACT]. It cannot be presented in an admissible form: [DECLARANT] is not on any witness list, the document was not made as a regular practice, and no exception has been identified.

Response:

Exhibit [X] can be presented in admissible form at trial. [DECLARANT] has been disclosed and will testify to the same facts [or: a custodian will lay the Rule 803(6) foundation, as the attached declaration shows]. At this stage the question is the admissibility of the contents, not the form. Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003); Lee v. Offshore Logistical & Transport, L.L.C., 859 F.3d 353 (5th Cir. 2017).

Drafting notes. Rule 56(c)(2) focuses on whether material can be presented in admissible form. Fraser and Lee explain this, as does Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532 (4th Cir. 2015). Avoid the one-word objections criticized in Sandoval v. County of San Diego, 985 F.3d 657 (9th Cir. 2021). A declaration in support must meet Rule 56(c)(4). Coordinating with Summary Judgment Motion Checklist: A Practical Checklist helps here.

Tool 16: Rule 1006 summary template and preparer declaration

Purpose: Prove the content of voluminous material with a chart that is itself evidence. Owner: Finance or data analyst, supervised by counsel. Timing: Draft during expert and fact wrap-up; serve with Tool 7.

Chart format

PLAINTIFF'S EXHIBIT [X]
SUMMARY OF [NEUTRAL DESCRIPTION] UNDER FED. R. EVID. 1006

Source materials: [BATES RANGE], available at [PLACE/REPOSITORY]
Period: [DATES]   Prepared by: [NAME]   Method: see Declaration

| Date | Source (Bates) | Payee/Description | Amount |
|------|----------------|-------------------|--------|
|      |                |                   |        |
TOTAL: [AMOUNT]

Assumptions: [NONE, OR LIST WITH SUPPORT]

Preparer declaration (or use for direct examination)

1. I am [TITLE] at [COMPANY]. I prepared, or supervised the preparation of, Exhibit [X].
2. The source materials are [DESCRIPTION; BATES]. They consist of [NUMBER] pages/records, and it would be impractical to examine them in court.
3. I reviewed each source item [OR DESCRIBE THE SAMPLE OR QUERY]. Exhibit [X] reports [FIELDS] from those materials without change, except [DESCRIBE ANY ARITHMETIC].
4. I checked accuracy by [METHOD]. I made no judgments about [ANY CONCLUSIONS] other than [NONE / STATE].
5. The source materials have been available to the other parties at [PLACE] since [DATE].

Drafting notes. Rule 1006(a) requires voluminous admissible material that cannot be conveniently examined in court. It does not matter whether the source has been introduced. Rule 1006(b) governs availability. The 2024 committee note states such a summary is substantive evidence, and a court may not tell the jury otherwise. The source must be admissible, so tie each source set to its route in Tool 1. Keep adjectives off the chart; Peat ordered a new trial over a compilation filled with characterization and conclusions, and Paddack rejected an audit drawing on untestable sources. If the records themselves are the computer's output, U-Haul may make Rule 803(6) the better route. If it requires judgment, you may need an expert (Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination), and Civil Damages Toolkit: Contract, Tort, Statutory, and Punitive Recovery has damages models to pair with it.

Tool 17: Rule 107 legend and exchange language

Purpose: Keep illustrative aids separate from evidence. Owner: Trial team. Timing: Follow the court's exchange order; otherwise propose one.

Legend for each slide:

ILLUSTRATIVE AID. NOT EVIDENCE. FED. R. EVID. 107.

Proposed exchange language for the pretrial order:

The parties will exchange illustrative aids to be used in opening statements by [TIME] on [DATE], and those to be used with a witness by [TIME] the day before the witness testifies. Objections will be raised by [TIME]. Aids used at trial will be marked for identification and entered in the record when practicable. Aids will not go to the jury room unless all parties consent or the Court orders otherwise for good cause.

Drafting notes. Rule 107(a) allows an aid if its utility in helping comprehension is not substantially outweighed by unfair prejudice, confusion, misleading the jury, undue delay, or wasting time. Under Rule 107(b), an aid must not go to deliberations without consent or good cause, and Rule 107(c) requires entering it in the record when practicable. The committee note leaves notice to the judge, so propose an exchange and avoid an argument at the podium. Older pedagogical-device cases include United States v. Bray, 139 F.3d 1104 (6th Cir. 1998) and United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006). For exhibit presentation logistics, see Preparing Exhibits and Demonstratives for Trial: A Practical Guide and Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions.

Tool 18: Limiting instruction and offer of proof

Purpose: Save the record when a document comes in for a limited purpose or stays out. Owner: Trial counsel. Timing: Have both ready before the exhibit is offered.

Limiting instruction:

Members of the jury, you may consider Exhibit [X] only for the purpose of deciding whether [PARTY] had notice of [SUBJECT] as of [DATE]. You may not consider it as evidence that the statements in it are true.

Offer of proof (after a sustained objection):

Your Honor, may I make an offer of proof for the record? Exhibit [X], marked for identification, is [DESCRIPTION]. Had the witness been allowed to continue, the witness would have testified that [FACTS SATISFYING THE ELEMENTS]. We offered the exhibit under [RULE], and alternatively under [RULE]. It goes to [ISSUE]. Please mark it as part of the record.

Drafting notes. Rule 105 requires the court to restrict evidence to its proper scope on timely request, so the request is your job. In Cone, the absence of a proper instruction was error. A jury that hears "decide if they're believable" has been told the opposite of the instruction above. Rule 103(a)(2) requires informing the court of the substance of excluded evidence unless it is apparent. Unpreserved rulings are hard to fix, and Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win explains why, while Post-Trial Motions in Federal Court: Judgment as a Matter of Law, New Trial, Remittitur, and Relief From Judgment covers the motions that follow.

This toolkit is a general starting point, not legal advice for a particular case. Have a lawyer admitted in your court adapt anything you plan to file or have a witness sign.

Related Documents

Related Articles

• Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence: the law behind these forms.
• Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges: authorship and authenticity for chat and social media exhibits.
• Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination: when a data analysis needs an expert sponsor.
• Data Breach Class Actions: Article III Standing, Negligence Claims, and Forensic Report Privilege: from this batch; how forensic reports get treated, which pairs with the litigation-record questions in Tool 13.

Related Guides

• Laying the Foundation for Business Records and Defeating Hearsay Objections: A Practical Guide: when and how to use each form.
• Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide: collecting messages before certifying them.
• Preparing Exhibits and Demonstratives for Trial: A Practical Guide: exhibit logistics at trial.
• Designating and Playing Deposition Testimony at Trial: A Practical Guide: playing foundation testimony from a deposition.

Related Checklists

• Hearsay and Business Records Checklist: A Practical Checklist: the desk checklist that this toolkit carries out.
• Motion in Limine Checklist: A Practical Checklist: taking certification disputes to the court.
• Summary Judgment Motion Checklist: A Practical Checklist: record support at summary judgment.

Related Toolkits

• Digital Message Evidence Toolkit: Collection Protocols, Authentication Declarations, and Rule 902 Certifications: collection protocols and declarations for messages.
• Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege: subpoenas and third-party records.
• Motion in Limine Toolkit: Standard Motion Banks, Opposition Frameworks, and Trial Objection Plans: motion banks for exhibit fights.
• Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts: designation charts and objection logs.
• Clawback Toolkit: 502(d) Orders, Clawback Notices, and Privilege Review Protocols: from this batch; protecting privilege while producing records.
• Federal Deadline Toolkit: Calendaring Protocols, Extension Motions, and Excusable Neglect Declarations: from this batch; extension motions when an evidence deadline slips.