Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence

Picture the owner of a sheet metal shop on the witness stand in a collection case. Call the shop Harlow Fabrication. She holds up the invoice that started the whole fight, the one for $412,000 of ductwork. She wrote the customer's name on the work order herself. She knows that invoice the way she knows her own handwriting. Her lawyer asks her to tell the jury what it says.

"Objection. Hearsay."

"Sustained."

Nobody in the courtroom doubts that the paper is real, including the lawyer who objected. The invoice is out anyway, for now, and the owner looks at her lawyer as if the legal system has just lost its mind. It hasn't, quite. The objection asks a narrower question than "is this genuine?" It asks who is vouching for the facts on that page, and how the jury can test them.

Getting documents into evidence is a matter of clearing separate hurdles in a particular order, and the hurdles have different owners and different burdens. Judge Paul Grimm laid them out in the opinion that most lawyers still start with, Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), describing the evidence rules as presenting themselves "like a series of hurdles to be cleared by the proponent of the evidence." In that case he dismissed both sides' summary judgment motions without prejudice, because the emails attached to them had simply been stapled on without authentication. This article walks the hearsay hurdle in detail, then the authentication and summary rules that travel with it.

The short answer

A document offered to prove what it says is hearsay unless a rule says otherwise. Many business documents clear that bar for one of three reasons, and you should identify which one before you draft a single foundation question:

• It is not offered for its truth. A signed contract is a legal act. A warning letter shows notice. Neither needs an exception, as long as the jury is told the limited purpose.
• It is the other side's own statement. An email from the opposing party or its employee, on a matter within the job, comes in under Fed. R. Evid. 801(d)(2) with no reliability showing at all. Your own client's emails get no such help.
• It fits an exception. For most company records that means Fed. R. Evid. 803(6), which requires a record made near the time, by or from someone with knowledge, kept in a regularly conducted activity, as a regular practice, shown by a qualified witness or a certification. The opponent then carries the burden of showing untrustworthiness.

Several traps recur. A record built for a lawsuit fails (Palmer v. Hoffman, 318 U.S. 109 (1943)). A statement from an outsider inside a good record needs its own path through (Fed. R. Evid. 805). Email is not a business record merely because a business sent it (United States v. Cone, 714 F.3d 197 (4th Cir. 2013)). A database printout made for trial can qualify if the underlying data was entered in the ordinary course (U-Haul International, Inc. v. Lumbermens Mutual Casualty Co., 576 F.3d 1040 (9th Cir. 2009)). Data a machine generates without human input is not hearsay at all, though you must still prove the machine works (United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015)).

Certifications under Fed. R. Evid. 902(11), (13), and (14) can replace a live foundation witness if you give written notice before trial. They settle authenticity, and only 902(11) and its foreign counterpart, 902(12), also carry the 803(6) foundation. In a criminal case, the Confrontation Clause adds a separate limit.

What hearsay actually is

Under Fed. R. Evid. 801(a) through (c), hearsay is a statement the declarant did not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted in the statement. A "statement" is a person's oral assertion, written assertion, or nonverbal conduct intended as an assertion. A "declarant" is the person who made it. Fed. R. Evid. 802 then excludes hearsay unless a statute, the rules, or another Supreme Court rule provides otherwise.

The reason for the rule matters, because it predicts how courts handle hard cases. When a witness testifies, the jury can test four things through cross-examination: whether the witness perceived the event accurately, remembers it, is telling the truth, and has described it clearly. A person who wrote a sentence on an invoice three years ago can be tested on none of those. All four risks sit in that sentence, unexamined.

So look again at Harlow's invoice. It says, in effect, "On March 3 we delivered 900 duct panels to you at the following price, and you owe us this amount." That is a set of assertions by whoever typed it. If the owner offers it to prove that 900 panels were delivered and the price was agreed, it is hearsay, even though she employs the person who typed it, and even though she could have typed it herself. A witness's own out-of-court statement is still hearsay when she offers it. The rule looks at where the assertion was made, and people are surprised by that.

The shop owner has an easy fix for some of this. She may have personal knowledge that the panels were delivered, and she can simply say so. The invoice is often more useful for what no one remembers, such as line 47 of 300, from a job three years gone. That is where the exceptions earn their keep.

Documents that are not hearsay at all

Before reaching for an exception, ask why the document matters. If its significance does not depend on the truth of an assertion in it, the hearsay rule does not apply. Courts routinely recognize several categories.

Verbal acts and operative words

Some words do legal work just by being spoken or signed. An offer, an acceptance, a release, a guaranty, a defamatory sentence, and a threat all change the world when uttered. The Fifth Circuit made the point with some impatience in Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994), a copyright case in which a license agreement drew a hearsay objection and both the proponent and the trial court were thrown by it. The court called the objection inapposite and wrote: "Signed instruments such as wills, contracts, and promissory notes are writings that have independent legal significance, and are nonhearsay." A contract, it added, "is a verbal act."

The limit is worth keeping in view. A contract is non-hearsay as proof that the parties made those promises. A recital in the same contract that "the Seller has delivered all prior shipments" is an ordinary assertion if offered to prove the shipments arrived. Invoices sit awkwardly here. An invoice that is itself the demand for payment under a contract may have operative effect as a demand, but its factual content, what was shipped and when, is still an assertion.

Notice, knowledge, and effect on the listener

A letter telling a company that its product hurt someone can show that the company had notice, whether or not the letter was accurate. The risk is in the follow-through. Cone involved customer emails complaining that routers were counterfeit and fake. The trial court admitted them to show the defendants were on notice, then refused a limiting instruction and told the jury that the emails say what they say and that jurors would have to decide whether they were believable. The Fourth Circuit held that this was error, because whether the customers were believable matters only if the emails are being used for their truth. The error was harmless in that trial, on overwhelming evidence, but the lesson travels. If you offer a document for a limited purpose, ask for an instruction under Fed. R. Evid. 105. If you oppose it, insist on one. And make sure the non-truth purpose is genuinely in dispute. A notice theory is thin cover when nobody contests notice.

Questions, commands, and context

An instruction ("send me the Q3 numbers") or a question asserts nothing that can be true or false. In United States v. Safavian, 435 F. Supp. 2d 36 (D.D.C. 2006), Judge Friedman sorted a set of lobbying emails into piles: the defendant's own statements, adoptive admissions, statements admitted for a purpose other than truth, and statements excluded altogether. It remains one of the better models of email-by-email analysis, and it shows why wholesale offers lose. Similarly, in United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the other half of a Facebook chat came in for context, to make the defendant's own words intelligible and recognizable as admissions. A chat among other people, offered for its truth, did not get the same treatment. The Third Circuit held that one to be erroneously admitted, though harmless.

The other side's words: Rule 801(d)(2)

Anything an opposing party said can be used against it. Rule 801(d)(2) defines these as non-hearsay, and the rationale has little to do with reliability. It is an adversarial idea: you can hardly complain that you did not get to cross-examine yourself. That is why the usual trustworthiness concerns drop out, and why this is often the fastest route for an email, a Slack message, a text, or a sales deck.

The rule has five branches:

• (A) The party's own statement, in an individual or representative capacity. In United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000), an email the defendant wrote came in on this basis once circumstantial evidence tied him to it.
• (B) A statement the party "manifested that it adopted or believed to be true."
• (C) A statement by someone authorized to speak on the subject.
• (D) A statement by the party's agent or employee, on a matter within the scope of that relationship and while it existed.
• (E) A coconspirator's statement during and in furtherance of the conspiracy.

The rule's closing sentences matter in contested cases. The statement must be considered, but it does not by itself establish the declarant's authority, the existence or scope of the employment, or the conspiracy. So you need some independent evidence that the person who sent the Slack message worked there and that the subject was part of the job. And since December 1, 2024, the rule has a further sentence. If a party's claim, defense, or potential liability is directly derived from a declarant or the declarant's principal, a statement admissible against the declarant or principal is also admissible against the party. That resolved a split over successors in interest, such as an assignee standing in the shoes of the original creditor.

The wolf case

The best way to remember how far (D) reaches is the story of Sophie. In Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978), a boy not yet four years old was found injured in an enclosure beside a chained wolf named Sophie, kept at the home of the research center's director of education, Kenneth Poos. No witness saw how the child was hurt. An expert testified that a wolf's licking and wailing were signs of care. Poos, who had not seen it either, left a note on his boss's door: "Sophie bit a child that came in our back yard." He told the boss the same thing, and the center's board minutes reflected discussion of the incident.

The trial court excluded all of it because Poos lacked personal knowledge, and the jury found for the defense. The Eighth Circuit reversed. Rule 801(d)(2) carries no personal knowledge requirement, the note and the conversation were admissible against Poos and against the center, and it did not matter that the statements were made inside the organization rather than to an outsider. The minutes were a different story, and their exclusion was upheld under Fed. R. Evid. 403, given their limited admissibility, low value, and repetitive nature.

Two things follow in modern practice. An employee's internal speculation can bind the company, even when the employee is guessing. And you must still look at scope. A warehouse clerk's opinion on the company's pricing strategy may fall outside (D).

Forwarding as adoption

In Sea-Land Service, Inc. v. Lozen International, LLC, 285 F.3d 808 (9th Cir. 2002), a grape shipper tried to prove that its carrier had unreasonably deviated. The key exhibit was an email an employee of the carrier forwarded to the shipper, copying a colleague's internal memo and adding a short preface: "Yikes," followed by a note that "the rail screwed us up." The district court excluded it. The Ninth Circuit held that to be an abuse of discretion. The forwarding employee had incorporated the memo and manifested her belief in it under (B), and the original author's statement also appeared to concern a matter within the scope of his job under (D).

The practical drafting point writes itself, and in-house lawyers should repeat it to everyone with an email account. Forwarding with a comment can adopt. Forwarding with "FYI, this is wrong" does not. Silence is harder. Whether not replying to a text or an email counts as adoption depends on whether a reasonable person would have responded if the statement were untrue, and on the relationship between the people involved. No bright line exists, and the A.L.R. annotation by George L. Blum, Hearsay Objections to Admission of Text Messages or Testimony Thereof, 10 A.L.R.7th Art. 4, collects the fact-bound results.

Limits, including who may use it

Rule 801(d)(2) runs in one direction. The statement must be "offered against an opposing party." A company cannot introduce its own CEO's helpful email under this rule, a surprise that hits many business clients. Its route has to be something else, usually 803(6) if it qualifies, or a live witness.

Before moving on, note a related change. The Supreme Court adopted an amendment to Rule 801(d)(1)(A) by order of April 8, 2026, effective December 1, 2026 unless Congress acts. It removes the requirement that a witness's prior inconsistent statement have been given under penalty of perjury at a proceeding or deposition before it can be used substantively. A prior inconsistent email, for instance, could then come in for its truth if the witness testifies and is subject to cross-examination, subject to Rule 403. The rule's other branches for prior statements are unchanged, including the timing limit for consistent statements under Tome v. United States, 513 U.S. 150 (1995), which requires that the statement predate the alleged motive to fabricate. Statements against interest under Fed. R. Evid. 804(b)(3) remain narrow as well; Williamson v. United States, 512 U.S. 594 (1994) admits only the portions that are individually self-inculpatory.

Where the business records exception came from

At common law, a shopkeeper who wanted to prove an account faced a remarkable set of demands. New York's rule from 1815 required proof of regular dealings, that the plaintiff kept honest books, that some of the goods had been delivered, and that the plaintiff kept no clerk. As firms grew, the rule demanded something absurd: every clerk, bookkeeper, and shipping hand who touched an entry had to testify. Dean Wigmore's response, quoted in the New York Court of Appeals' opinion in Johnson v. Lutz, 253 N.Y. 124 (1930), still reads well: "there cannot profitably and sensibly be one rule for the business world and another for the court-room," and "Courts must here cease to be pedantic and endeavor to be practical."

A 1927 Commonwealth Fund report by a committee of evidence scholars proposed a model statute, and New York enacted it in 1928. Congress followed in 1936 with the Federal Shop Book statute, now 28 U.S.C. § 1732 in revised form. Rule 803(6) took over when the Federal Rules of Evidence arrived in 1975.

The logic has two legs, stated well by the Seventh Circuit in a passage the Fourth Circuit later adopted: "First, businesses depend on such records to conduct their own affairs; accordingly, the employees who generate them have a strong motive to be accurate and none to be deceitful. Second, routine and habitual patterns of creation lend reliability to business records." (Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200 (4th Cir. 2000), quoting United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993).) Nearly every hard case below is a dispute over whether one of those two legs is missing.

Johnson v. Lutz also supplied the exception's most durable limit. A police officer's accident report, built on what bystanders told him, was excluded because the statute "was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto." The reasoning remains the foundation of the outsider rule discussed below.

The five elements of Rule 803(6)

Rule 803(6) covers a record of "an act, event, condition, opinion, or diagnosis." Opinions and diagnoses are included, so a record need not be limited to raw facts. "Business" is broad as well, reaching any "business, organization, occupation, or calling, whether or not for profit." Churches, schools, and sole proprietors qualify. The elements, with the way each one usually fails:

(A) Made at or near the time, by or from someone with knowledge

Timing is judged by the kind of record. A shipping log written at the dock is fine. A reconciliation worksheet created in the month before trial is not. The knowledge element has a useful flexibility: the person typing need not know the fact, so long as the information came from someone who did, through a chain of people acting in the regular course of the business. The classic example is a clerk entering a salesperson's report. That person need not be identified, either. Under Saks International, Inc. v. M/V Export Champion, 817 F.2d 1011 (2d Cir. 1987), there is no requirement to identify the person whose first-hand knowledge was the basis of the entry, as long as it was the business's regular practice to get information from such a person.

(B) Kept in the course of a regularly conducted activity

This element asks whether the record belongs to the enterprise's actual work. A personal notebook kept by an employee for his own purposes usually fails. So does an email thread that happens to live on the company server.

(C) Making the record was a regular practice

Regularity is about the type of record and the process, not about how many times this particular one was created. The 1972 Advisory Committee note makes the point in one line: "Absence of routineness raises lack of motivation to be accurate." A one-off memo written after a disaster usually fails here, and it may also fail under Palmer.

(D) Shown by a custodian, another qualified witness, or a certification

"Custodian" misleads people. The witness need not have made the record, supervised the maker, or even worked there at the time. In Thanongsinh v. Board of Education, 462 F.3d 762 (7th Cir. 2006), the Seventh Circuit, quoting Sixth Circuit authority, said that a custodian "need only be familiar with the company's recordkeeping practices." Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991) confirms the witness need not have prepared the records or have personal knowledge of their accuracy. And Saks allowed a foundation through a witness who was not an employee of the company that created the record at all, a ship's mate who testified how the cargo trade used African loading tallies and who had spot-checked them. Michael Graham's Handbook of Federal Evidence § 803:6 (9th ed.) walks through a hospital custodian employed for six months who never saw the chart before the day of trial, and who is still qualified.

Familiarity with how the record is created is the real test, and it is where sloppy foundations fail. Rambus, Inc. v. Infineon Technologies AG, 348 F. Supp. 2d 698 (E.D. Va. 2004) excluded 148 documents offered under fourteen third-party declarations, because a person who knows only how documents are stored cannot vouch for how they came to be. The court also noted that many of the outsider records were email chains whose trustworthiness was not apparent.

(E) The opponent does not show a lack of trustworthiness

A 2014 amendment settled who carries this burden. Once the proponent shows (A) through (D), the opponent must show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Most courts already placed the burden there, but some had not. The committee note adds that meeting this burden does not always require affirmative evidence. An opponent may, for example, argue from the record itself that it was prepared in anticipation of litigation and favors the party that prepared it.

Old cases written before 2014, including some still quoted, describe trustworthiness as "the principal precondition" (that is Saks's phrasing) and treat it as the proponent's job. Read them for what they say about the facts, not for the burden.

Palmer v. Hoffman and records made for a lawsuit

The most-cited limit on the exception comes from a grade-crossing accident on the night of December 25, 1940. Two days later, the train's engineer gave a signed statement at a freight office, interviewed by an assistant superintendent and a representative of the Massachusetts utilities commission. He died before trial. The railroad offered the statement under the 1936 Act, with an offer to prove that taking such statements was its regular practice.

The Supreme Court affirmed the exclusion in an opinion by Justice Douglas that can be read in ten minutes and should be. Regularity alone was not enough. The opinion says the statement "is not a record made for the systematic conduct of the business as a business," and contrasts it with "payrolls, accounts receivable, accounts payable, bills of lading and the like." Then comes the line every evidence student remembers: these reports "are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading." The Court saw where the opposite rule would lead. If regular recording were enough, "any law office in the land could follow the same course," and any company could qualify its version of its own accidents by adopting a form.

How the rule works today

Palmer was never a flat ban on accident reports. In Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975), the Second Circuit upheld the admission of a railroad's accident reports offered in a case about a brake, stressing that the engineer in Palmer had been personally involved and knew he was likely to be accused. Motive, more than the label on the form, drives the analysis.

The later cases show the pattern:

• Hired investigators. In Sinkovich, a marine insurer hired an investigator after a boat accident, and his 343-page file came in as a business record. The Fourth Circuit vacated. The insurer argued that investigating is what the man does for a living. The answer: "Litigants cannot evade the trustworthiness requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business."
• Audits triggered by suspicion. Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir. 1984) rejected trust fund audit reports commissioned after a suspected contribution shortfall, in a bench trial. A routine annual audit stands on very different footing.
• Work done at the government's request. In Blackburn, lens readings performed for the FBI were treated as outside the regular course, because the shop that made them knew the purpose.
• Letters written with a dispute under way. Timberlake Construction Co. v. U.S. Fidelity & Guaranty Co., 71 F.3d 335 (10th Cir. 1995) rejected letters from a contractor and its counsel, offered as business records, in part on the principle that one who prepares a document in anticipation of litigation is not acting in the regular course of business.

The distinction that saves most companies: the data versus the printout

Now the opposite problem. Nobody prints a database report except when asked to, and a lawsuit is often the reason for asking. Courts have sensibly refused to treat this as a Palmer problem. In United States v. Fujii, 301 F.3d 535 (7th Cir. 2002), an airline manager printed check-in and reservation records at the request of immigration inspectors. The Seventh Circuit held that the request did not strip the printouts of their business-record character, since the underlying entries were made in the ordinary course. In U-Haul, the Ninth Circuit affirmed the admission of computer-generated summaries of insurance claim payments through a claims manager, on findings that the data was entered at or near each payment, by people with knowledge, in the regular course. Those summaries were themselves the business records, so Rule 1006 was not in play. United States v. Channon, 881 F.3d 806 (10th Cir. 2018) rejected the argument that moving transaction data from a corporate database into spreadsheets for litigation destroyed its status.

The test is the state of the data, not the date of the query. So the question a careful lawyer asks a records witness is: what happened between the original entry and this page? A straight export is one thing. A report that joins tables, applies business logic, recategorizes transactions, or estimates missing values starts to look like a new analysis. At that point the foundation needs someone who can explain the transformation, and possibly an expert under the standards discussed in Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination.

Double hearsay, outsiders, and third-party data

Rule 805 states that hearsay within hearsay is admissible only if each part conforms with an exception. Applied to records, this means the exception covers the employee's act of recording, and does not automatically cover what someone told the employee. If a stranger supplied the fact, you need a second path.

Johnson v. Lutz is the origin. Modern versions include a hospital chart recording what a family member said (Wilson), an insurer's claim file, and a customer complaint log. In Browne, the Third Circuit explained why this matters for social media, and why a platform's certificate cannot fix it. The custodian can confirm that accounts exchanged messages at certain times, and that is about all. That does no more to confirm the contents than, in the court's image, a postal receipt attests to what the enclosed letter says.

A hospital entry showing "patient says the pallet fell on his arm" may be fine because the patient's statement has its own exception for medical diagnosis, Rule 803(4). An outsider's statement can also come in when the business verifies it. The Third Circuit's language, again from Browne quoting its earlier decision in United States v. Console, is that it suffices if the standard practice was to verify the information provided, or if the information met another exception. A hotel that checks a guest's ID before recording the name is the textbook illustration.

Adoptive business records: the third-party invoice problem

Modern commerce runs on documents received from others: vendor invoices, freight bills, bank confirmations, lender files, supplier certificates. Can a business offer them as its records, through its own witness? Most courts say yes, under conditions. This is the line of authority often called the adoptive business records doctrine, sometimes "integrated records."

• Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999) affirmed admission of third-party repair estimates that were integrated into military claims files and relied on in adjudicating claims, even though the government's witnesses could not vouch for who wrote the estimates or how.
• United States v. Childs, 5 F.3d 1328 (9th Cir. 1993) approved documents prepared by others and relied upon by an auto dealership, distinguishing an earlier case rejecting a freight bill because the company receiving it had no interest in the accuracy of the relevant portion.
• MRT Construction Inc. v. Hardrives, Inc., 158 F.3d 478 (9th Cir. 1998) admitted law firm bills through a company's CFO. Its formulation is the most useful: records a business receives from others are admissible when "kept in the regular course of business, relied upon by that business, and where that business has a substantial interest in the accuracy of the records."
• United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007) went a step further in language, holding that "a record of which a firm takes custody is thereby 'made' by the firm," and is admissible if the other requirements are met. It involved mortgage file documents that lenders relied on.
• Saks, noted above, accepted African stevedores' tallies through a ship's mate who described the trade's reliance on them and his own spot checks.

The doctrine has limits, and the circuits phrase them differently. Graham's treatise puts it conservatively: mere receipt of a document from an unaffiliated business does not suffice. The business must integrate the information, rely on it in day-to-day operations, and surrounding circumstances must indicate trustworthiness. Expect the argument, too, that a company with a stake in the document's being wrong or right (a buyer paying what the vendor billed, for instance) does not have the disinterested motive that justifies the exception. Whether the third party's own regular practice must be shown remains a point of difference. Some courts want more when the document is offered through someone with no window into its creation, and a debt buyer holding purchased account data is the place this fight happens most often. For the defensive view of that fight, see Defending a Debt Collection Lawsuit: A Practical Guide.

Worked example: the subcontractor's invoice

Suppose Northgate Builders, a general contractor, sues an owner for the cost of a delay. Part of its proof is an invoice from its steel erector, Ironbridge. Ironbridge has closed and its people are scattered. Northgate's project accountant is the witness.

What the accountant can establish. Every subcontractor invoice goes into the job file. The project manager checks each one against the daily logs and the schedule of values. Northgate pays only what passes that check, and it paid this one. Its accounting system entry was made within days.

Likely outcome on 803(6). Under MRT and Air Land, a good foundation exists. Northgate relied, checked, and paid its own money, so it had a real interest in the accuracy of the amount.

Where it gets harder. The invoice also contains a note: "Delay caused by owner's late steel approvals." That is a different assertion. Northgate has no regular process for verifying the cause of delay stated on a subcontractor's invoice, and it benefits from that statement. A careful court would admit the amount and redact the note, or admit the note only for a limited purpose. The fact that a document clears the bar as to its numbers says nothing about its editorial comments. The same point applies to any record: offer the entries you need, and analyze each one.

The live alternative. Northgate could also subpoena an Ironbridge custodian or obtain a 902(11) certification from whoever holds the records. That is cheaper than most lawyers assume, as the guide in this series explains.

Email, chat, and "we run this place on Slack"

Email deserves its own warning, because the instinct to call it a business record is so strong. Cone rejected that instinct directly. The court accepted that properly authenticated emails may qualify, but held "it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those e-mails are business records falling within the ambit of Rule 803(6)(B)." The opinion also quotes the line that "An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception," from Morisseau v. DLA Piper, 532 F. Supp. 2d 595 (S.D.N.Y. 2008). The Sixth Circuit agreed in United States v. Daneshvar, 925 F.3d 766 (6th Cir. 2019), holding that an email is not a business record simply because it was sent between two employees or because employees regularly conduct business through email.

The reason is the regular-practice element. Email is a medium, the way paper is a medium. A daily 5:00 p.m. production report sent by email to the same distribution list can be a business record. A one-off complaint about a coworker cannot, even if it was sent from a corporate account about corporate matters. To qualify a specific message, the foundation has to show that the company required or expected this kind of report, that the sender had a duty to report accurately, and that it was prepared near the event. Safavian also shows the authentication side: a custodian's blanket certification covering 467,747 emails produced by a law firm was rejected, because the government was not offering them as business records and Rule 902(11) authenticates only evidence offered under that exception.

Slack, Teams, and text threads raise the same question with less formality, and sometimes a more serious problem of who was on the other end. Authorship is its own issue, addressed at length in Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges. Keep two ideas apart: "the platform's records show this message moved between these accounts" and "this person wrote it and it is true." United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) found error in admitting a printed profile page from a Russian social network without evidence that the defendant created or controlled it.

Absent entries, public records, and the residual exception

Rule 803(7): proving a negative with a record

Rule 803(7) lets you prove something did not happen by showing it is not in a record where it would be. No return appears in the returns log, no maintenance entry for that date, no record of the refund. The foundation is that the record was regularly kept for a matter of that kind, and the opponent again carries the burden of showing untrustworthiness. In a software setting, this is the argument that an event never happened because the audit log has no entry. That argument is only as good as the logging. If the system logs only some events, or the retention window has rolled over, the inference fails, and an honest witness should say so.

Rule 803(8): public records

Rule 803(8) covers a public office's record of its activities, matters observed under a legal duty to report (excluding, in a criminal case, matters observed by law enforcement), and, in civil cases or against the government in criminal cases, factual findings from a legally authorized investigation. Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) held that factually based conclusions and opinions in an investigative report are within the exception, subject to the trustworthiness inquiry. Beech is why agency findings, including contested ones, often reach the jury unless the opponent shows a reason not to believe them. The 1972 note's factors include timeliness of the investigation, the investigator's skill, whether a hearing was held, and possible motivation problems.

The opponent carries that burden here too, and it can matter. Bridgeway Corp. v. Citibank, 201 F.3d 134 (2d Cir. 2000) admitted State Department country reports on the condition of the Liberian judiciary and treated them as presumptively reliable under the exception, placing on the challenger the job of showing otherwise. The criminal limit has real teeth. United States v. Oates, 560 F.2d 45 (2d Cir. 1977) read the rule broadly to reach a Customs Service chemist's report, reasoning that "other law enforcement personnel" includes any employee of a government agency with law enforcement responsibilities. An offer of a public report also cannot launder the outsider statements inside it; Rule 805 applies here as well. Absence of a public record is handled by Rule 803(10), with its own written-notice procedure in criminal cases.

Rule 807: the residual exception after 2019

Rule 807 is the safety valve, and its 2019 amendment made it easier to understand, if not easier to win. A statement not covered by Rules 803 or 804 can come in if (1) it is supported by sufficient guarantees of trustworthiness, after considering the totality of circumstances and any corroborating evidence, and (2) it is more probative on the point than any other evidence the proponent can reasonably obtain. The amendment dropped the old requirement of "equivalent" guarantees, which courts found hard to apply, and removed the separate materiality and interests-of-justice language as duplicative. The committee note says the court may consider whether a statement is a near miss of a standard exception, along with the reason it missed. Corroboration is now expressly relevant, though not dispositive.

The rule also requires written notice before trial or hearing, including the substance and the declarant's name, unless the court excuses it for good cause. That notice is often missed. Courts still use the rule sparingly. Daneshvar rejected it for an email, and Browne noted the possibility while holding that the government had not raised it. Do not build a case on it. Plead it in the alternative in your exhibit notice whenever a document looks like a near miss, and be ready to explain why nothing better exists. United States v. Turner, 718 F.3d 226 (3d Cir. 2013), mentioned in Browne, is an example of a court upholding its use for bank records.

Authentication: Rule 901, and Rule 902's shortcuts

Hearsay asks whether the assertion may be believed. Authentication asks a prior question: is this thing what its proponent says it is? Rule 901(a) requires evidence sufficient to support such a finding, and the bar is low. Rule 901(b)(4) allows proof through distinctive characteristics, and Rule 901(b)(9) allows proof by describing a process or system and showing that it produces an accurate result.

Keep the two separate. A certified invoice may be authentic and still contain hearsay. A plainly genuine email from the opposing party's CEO needs no exception, only authentication. Practitioners who merge the two lose objections they should have won.

Rule 902(11) and (12): the certification route

Rule 902(11) makes a domestic record self-authenticating if it meets Rule 803(6)(A) through (C), "as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court." The usual federal statute is 28 U.S.C. § 1746, the provision for unsworn declarations under penalty of perjury. Before trial, the proponent must give reasonable written notice and make the record and certification available for inspection. Rule 803(6)(D) cross-refers, so the same certification does double duty: authenticity and the business records foundation. Foreign records use Rule 902(12) in civil cases; criminal cases use 18 U.S.C. § 3505.

Courts describe the pair as going "hand in hand," with the certification as the functional equivalent of live testimony (the phrase is from Rambus). That has consequences. A certification cannot do what a live witness could not. If the certifier does not know how the record was made, it fails, as Rambus held. It must say something more than the words of the rule when the record is unusual. And certifying a pile of mixed documents, some received from outsiders and some created in-house, invites a document-by-document challenge. Adefehinti shows the rule working as designed for loan files, with the defendants free to call the custodians if they wished.

The social media split

Can a platform's Rule 902(11) certificate authenticate user content? The Fourth Circuit upheld admission of Facebook pages and YouTube videos on such certificates in United States v. Hassan, 742 F.3d 104 (4th Cir. 2014), though the trial court also required the government to link the accounts to the defendants through IP addresses. The Third Circuit in Browne rejected the theory that chat logs were business records capable of self-authentication at all, then affirmed because extrinsic evidence tied the defendant to the chats. United States v. Gal, 606 F. App'x 868 (9th Cir. 2015) (unpublished) drew a helpful line: a Yahoo custodian's affidavit could show that Yahoo recorded each email as it was sent or received at given addresses, but not who sent it. Other evidence had to do that.

The cases can be reconciled more than they first appear to be. Everyone agrees a platform can certify the fact of its own recording. Nobody thinks a platform's custodian can vouch for the truth of what users wrote or for who sat at the keyboard. Plan to prove those things another way. Also bear in mind that a civil subpoena will usually not get you message content from a platform, given the Stored Communications Act's limits at 18 U.S.C. § 2702, so the collection plan often has to run through the account holder. Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide covers that in detail.

Rule 902(13) and (14): the 2017 amendments

Two provisions effective December 1, 2017 extended the certification idea to electronic evidence, for which a live witness was almost always a formality. The committee note, as quoted in United States v. Dunnican, 961 F.3d 859 (6th Cir. 2020), observes that parties often go to the expense of producing an authentication witness only to have the adversary stipulate or fail to challenge the testimony.

Rule 902(13) covers "a record generated by an electronic process or system that produces an accurate result," as shown by a qualified person's certification. It is the certification version of Rule 901(b)(9). Typical examples are a log file, a phone's location history, or a system's record of a file transfer.

Rule 902(14) covers "data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification," also by certification. In plain terms, it covers a forensic copy verified by hash value.

Here is what happens at the system level. A hash function reads every bit of a file or drive and returns a fixed-length string (a SHA-256 value, for instance, is 256 bits, usually shown as 64 hexadecimal characters). Change one bit and the output changes unrecognizably. So if an examiner hashes the original drive, images it, and hashes the image, matching values show the copy is identical to a degree no human comparison could approach. As the committee note says, when the values match, it is highly improbable that the original and copy differ. Note what this does not establish. A matching hash shows the copy equals the source. It says nothing about whether the source was accurate, who put the data there, or whether the file's timestamps reflect reality. Those are separate questions.

In Dunnican, an ATF agent certified a phone extraction using a digital fingerprint generated by special software, the government filed notice, and the defense raised no authenticity objection at trial; the Sixth Circuit found no plain error. That is how the rule is supposed to work: find out early whether authenticity is truly in dispute.

The committee note also makes the limit explicit. A certification under these provisions establishes only authenticity, and the opponent remains free to object on hearsay, relevance, or, in criminal cases, confrontation grounds. A 902(13) certificate does not turn a human-typed log note into admissible truth. The note also warns that a real challenge may require technical information about the system, possibly a forensic expert, and that this affects whether notice was fair. Serve early.

Machines do not make statements

The hearsay rule is about people. Because a "statement" is "a person's" assertion, output produced without human assertion is not hearsay. The courts of appeals are aligned on this, though they use different vocabulary.

• United States v. Washington, 498 F.3d 225 (4th Cir. 2007): raw data from lab machines testing a blood sample were not statements of the technicians, were not hearsay, and were not testimonial.
• United States v. Khorozian, 333 F.3d 498 (3d Cir. 2003): a fax header and date automatically generated by the machine were not hearsay. The district court had excluded the fax on that ground.
• United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005): header information a computer automatically generated to accompany images on the internet involved neither a statement nor a declarant.
• United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008): raw telephone billing data recorded by machine were not statements of persons, for hearsay and confrontation purposes.
• Channon: machine-produced transaction records fell outside Rule 801, the declarant not being a person.

Lizarraga-Tirado is the most readable of the group, and it should be required reading for anyone who works with software evidence. A Border Patrol agent recorded GPS coordinates at an arrest, and the government offered a Google Earth image with a labeled tack. Judge Kozinski split the problem precisely. A satellite image makes no assertion, so it is not hearsay. A tack placed by a user and labeled by hand is "classic hearsay," like drawing an X on a paper map and labeling it "hidden treasure." A tack placed automatically by the program from typed coordinates is not, because "the program makes the relevant assertion." The record did not say how the tack got there, so the panel checked, taking judicial notice that entering the coordinates produced the same tack. The opinion then adds the sentence that sets up the real fight: "A machine might malfunction, produce inconsistent results or have been tampered with. But such concerns are addressed by the rules of authentication, not hearsay."

Computer-stored versus computer-generated

This is the key line for every system log and database. A computer-stored record is a human's assertion that happens to live on a disk: a sales rep's note, a typed support ticket, an address in the CRM. It is hearsay and needs an exception. A computer-generated record is the system's output with no human assertion, such as a server timestamp, a request log, a router's packet count, or a hash. It needs authentication under Rule 901(b)(9) or 902(13), and no exception.

Most real records are mixed, and each field must be analyzed on its own.

Worked example: the API log

Suppose a subscription software company, Ledgerline, sues a customer for overage fees and offers an export from its billing database. A row reads:

2025-03-14T09:22:17Z | acct 88213 | endpoint /v2/invoices | status 200 | calls 41,207 | csm_note: "customer confirmed spike was their migration"

The analysis runs field by field.

Note what a good cross-examiner does with the "not hearsay" fields. Who wrote the aggregation job? Was the clock synced? Did a deploy on March 12 change how calls are counted? Were retried requests counted twice? Is that "export" a read from the production database, or from a reporting warehouse into which data was loaded, transformed, and deduplicated overnight? A failed or partial load can leave a warehouse wrong in ways the production system is not. Those questions are the substance of the 901(b)(9) foundation, and they're where software disputes are actually won and lost. For context on those disputes, see Failed Software Implementations: Contract, Fraud, and Warranty Claims When an IT Project Goes Wrong.

What the paperless cases demand: In re Vinhnee

The cautionary tale is American Express Travel Related Services Co. v. Vinhnee (In re Vinhnee), 336 B.R. 437 (B.A.P. 9th Cir. 2005). American Express offered monthly statements in a nondischargeability case, and no one objected. The bankruptcy judge insisted on a foundation anyway, gave American Express a post-trial chance to cure, found the follow-up declaration inadequate, and entered judgment for the debtor. The Bankruptcy Appellate Panel affirmed, holding the court was within its rights to require a proper foundation "even in the absence of an objection." The panel quoted Professor Imwinkelried's eleven-step foundation for computer records, covering the reliability of the equipment, the procedures for entering data, built-in safeguards, maintenance, and the witness's ability to explain the printout. It also framed the core concern in a sentence that works for any database: "it all boils down to the same question of assurance that the record is what it purports to be."

Few judges demand the full eleven steps. Most, especially after 2017, accept a sensible process description. But Vinhnee tells you what a demanding judge can ask for, and it is a reason not to treat an unopposed exhibit as a safe one. Mutable records raise the question more sharply: if a row can be edited without a trace, the witness needs to say how edits are logged.

AI outputs

Nothing in the rules speaks directly to generative AI yet, so the analysis has to come from first principles, and the honest answer is that this area is unsettled.

Start with the machine-statement cases. Is a large language model's output "a person's" assertion? On the reasoning of Washington and Lizarraga-Tirado, a pure machine output is not a statement, so the hearsay rule would not apply. That conclusion is less comforting than it sounds, for three reasons.

Inherited hearsay. Many outputs restate human input. If a transcription tool summarizes a meeting, or an analyst asks a model to summarize 2,000 customer complaints, the customers' and participants' statements are still in there. A machine summarizer no more launders them than a human clerk would. Courts treat machine-produced output as non-hearsay on the ground that no person made an assertion. That ground is shaky when the system's whole function is to repeat people. It is reasonable to expect Rule 805 thinking to apply.

Prompts are assertions. A user who frames a question, selects the data, and chooses among outputs has made human choices. In the Lizarraga-Tirado frame, this looks closer to the hand-placed tack than the automatic one.

Reliability is a Rule 702 problem. A traditional machine statement is deterministic: same input, same output, verifiable by checking. Generative models are probabilistic, they may not reproduce the same answer, and they may fabricate. "It produces an accurate result," the language of Rules 901(b)(9) and 902(13), is hard to certify in that setting. A person who pressed the button usually can't explain the model.

The rulemakers see the gap. The Advisory Committee on Evidence Rules published a proposed Rule 707 for comment in August 2025. It would have subjected machine-generated evidence offered without an expert to the reliability standards of Rule 702. The comments were mixed and raised concerns about the term "machine-generated," about notice, and about whether AI evidence should ever come in without an expert. In its May 17, 2026 report to the Standing Committee, the Committee said it "does not recommend action on the proposed Rule 707 at this time" and described a revised draft. That draft focuses on "artificial intelligence," presumes an expert foundation except in exceptional circumstances, and adds a notice requirement. The Committee's October 2026 agenda book describes the published proposal as withdrawn, with the modified version kept for further study through an expert panel. On deepfakes, the same May report concluded that "at least for now, an amendment to Rule 901 to address deepfakes is not warranted," while keeping a working draft of a Rule 901(c) in reserve. No such rule is in force. Lawyers should treat these as signals of where the concern lies. Courts can apply Rules 702, 901(b)(9), 403, and 104(a) to the same effect in the meantime.

A related question is whether a company's AI-assisted record can be a business record. Suppose a customer service platform writes an auto-generated summary of each call into the CRM, and agents rarely edit it. Rule 803(6)(A) asks for a record made by, or from information transmitted by, someone with knowledge, and an unreviewed model's summary is an odd fit. A sensible foundation would show that the company relies on the summaries, audits them for accuracy, and retains the underlying recording. The better exhibit is usually the recording. If a company's AI tool writes something into its records and an employee reviews and approves it as part of the job, the argument for 803(6) is much better. No appellate court, as far as our research showed, has settled this.

Summaries: Rule 1006 and new Rule 107

Two rules took effect on December 1, 2024 to clean up decades of confusion.

Rule 1006 now says the court "may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court, whether or not they have been introduced into evidence." The proponent must make the originals or duplicates available for examination or copying at a reasonable time and place, and the court may order them produced in court. The committee note is unusually direct about the errors it is correcting. Some courts had mistakenly required the underlying materials to be admitted; others refused a proper summary because the underlying documents were already in evidence. The note also says a Rule 1006 summary is substantive evidence, and that a court may not instruct the jury otherwise.

Rule 107 governs an illustrative aid, defined in the note as a presentation offered to assist the trier of fact and not as evidence. The court may allow it if its utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time. It must not go to the jury during deliberations unless all parties consent or the court orders otherwise for good cause. When practicable, it must be entered into the record. Advance notice is left to the trial judge, so check the standing order.

Before this, courts stretched Rule 611(a) to cover the same ground. United States v. Bray, 139 F.3d 1104 (6th Cir. 1998) explained the distinction between evidentiary summaries and "pedagogical devices," and United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006) acknowledged how easily the lines blur, including hybrid charts. Those opinions remain useful for their reasoning, while the rule text now controls. United States v. Janati, 374 F.3d 263 (4th Cir. 2004) shows the scale such charts can reach, with charts and summary witnesses proposed for roughly 1,300 reimbursement claims.

The most important limit did not change. The underlying material must be admissible. The cautionary case is Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154 (11th Cir. 2004). A plaintiff in a trade secrets case offered a compilation, Exhibit 145, listing its claimed secrets. It included a list of 109 items prepared by an engineer, checklists, and memoranda its principal wrote after the suit began, with assertions about what the defendant had intended. The trial court admitted it as a summary. The Eleventh Circuit, "reluctantly," ordered a new trial on the trade secrets claim, despite a verdict of about $1.8 million in compensatory damages and despite finding the evidence otherwise sufficient. "Rule 1006 is not a back-door vehicle for the introduction of evidence which is otherwise inadmissible." Paddack likewise rejected an audit that drew on untestable sources and a witness who could not separate them.

Exhibit logistics, including how demonstratives get cleared, are in Preparing Exhibits and Demonstratives for Trial: A Practical Guide.

Who decides, under what standard, and how to preserve the point

Under Fed. R. Evid. 104(a), the court decides preliminary questions about admissibility and "is not bound by evidence rules, except those on privilege." That means the judge may consider hearsay in deciding whether a hearsay exception applies. Bourjaily v. United States, 483 U.S. 171 (1987) established that the proponent must show the preliminary facts by a preponderance of the evidence, and that the court may look at the statement itself. Authentication is different: it is a Rule 104(b)-style question of whether a jury could find the item is what it claims to be, a lower bar. So a chat can clear authentication easily and still fail hearsay.

Rule 104 is itself under review. The Advisory Committee's proposed amendments, published for comment in August 2026, would write the preponderance standard into Rule 104(a), and would rework Rule 104(b) to eliminate the concept of conditional relevance in favor of asking whether the trier of fact could reasonably find Rule 401 satisfied. Those are proposals only. A separate proposal would add federally recognized Indian Tribes and Nations to Rule 902(1).

On appeal, the standard is abuse of discretion, and even clear error is reviewed for harmlessness. Cone and Browne both found error and affirmed. Preservation is unforgiving. Fed. R. Evid. 103 requires a timely objection stating the specific ground, or an offer of proof when evidence is excluded, although a definitive pretrial ruling need not be renewed. Lizarraga-Tirado shows the cost of naming the wrong ground: the defendant objected on hearsay, not authentication, and that was the end of it. In civil cases, Fed. R. Civ. P. 26(a)(3)(B) requires objections to listed exhibits within 14 days after pretrial disclosures unless the court sets a different time, and anything other than a Rule 402 or 403 objection not so made is waived unless excused for good cause. Many hearsay objections die on that calendar. For the broader appellate picture, see Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win, and for the deadline itself, Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse.

Summary judgment and preliminary injunctions

Rule 56(c)(2)

Hearsay is treated differently before trial. Since the 2010 amendments, Fed. R. Civ. P. 56(c)(2) lets a party object that cited material "cannot be presented in a form that would be admissible in evidence." The question has moved from present form to what could be presented at trial. Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003) put the idea memorably, before the amendment: at summary judgment "we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." A plaintiff's diary could be considered there, because she could testify to its contents.

The later cases apply the same idea. Lee v. Offshore Logistical & Transport, L.L.C., 859 F.3d 353 (5th Cir. 2017) vacated a summary judgment that disregarded an unsworn expert report without asking whether it could be put in admissible form. Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532 (4th Cir. 2015) recognized a court may consider the content of otherwise inadmissible material if the proponent shows it can be made admissible. Sandoval v. County of San Diego, 985 F.3d 657 (9th Cir. 2021) held it an abuse of discretion to sustain one-word objections ("relevance," "hearsay," "foundation") and called them "meritless, if not downright frivolous" on that record.

Two cautions follow. Your opponent's objection shifts the burden to you to show how the material will be admissible, so say it: name the witness, the exception, or the certification. And Rule 56(c)(4) still requires declarations on personal knowledge setting out facts that would be admissible. A company's "I reviewed the file" declaration is hearsay unless it lays an 803(6) foundation, and it is much safer to attach the records and have the declarant lay it. More on motion practice is in Summary Judgment Under Rule 56: Winning and Surviving Before Trial.

Preliminary injunctions and other proceedings

At the preliminary injunction stage, courts commonly consider hearsay. Asseo v. Pan American Grain Co., 805 F.2d 23 (1st Cir. 1986) and Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010) both say so, with weight left open. Rule 1101 separately excludes certain proceedings, including sentencing and bail, from the rules altogether, and many administrative agencies and arbitrators are more relaxed.

Criminal cases: where the Confrontation Clause takes over

Everything above is evidence law. In a prosecution, the Sixth Amendment sits on top. Crawford v. Washington, 541 U.S. 36 (2004) barred testimonial statements from a witness who does not testify, absent unavailability and a prior opportunity for cross-examination. Crawford gave records a pass in passing, observing that most hearsay exceptions covered statements "that by their nature were not testimonial," and naming business records as the example. Lower courts relied on that sentence, as in United States v. Ellis, 460 F.3d 920 (7th Cir. 2006).

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) drew the boundary. Sworn lab certificates identifying a substance as cocaine were testimonial, whatever they were called. The Court explained that documents kept in the regular course of business may ordinarily come in, but not "if the regularly conducted business activity is the production of evidence for use at trial," citing Palmer. It also distinguished clerks. A clerk may authenticate or provide a copy of an otherwise admissible record, but cannot "create a record for the sole purpose of providing evidence against a defendant." Equipment maintenance records and treatment records generally stay on the nontestimonial side.

Bullcoming v. New Mexico, 564 U.S. 647 (2011) rejected surrogate testimony from an analyst who played no part in the test. Smith v. Arizona, 602 U.S. 779 (2024) went further, holding that when an expert conveys an absent analyst's statements in support of an opinion, and the statements provide that support only if true, they come in for their truth. That undercuts the old workaround built on Rule 703. Whether a statement is testimonial is a separate question, which Smith left for remand.

Where does that leave the routine records? Phone company data and its certification have fared well. United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011) held that Verizon's records were not testimonial and agreed with other circuits that Rule 902(11) certificates of authenticity are not either. The machine cases hold that raw data has no declarant to confront. But a custodian may not go beyond authenticating to interpreting what the record shows. And a report created because police asked for it, as opposed to a pull of existing data, belongs in the Melendez-Diaz column.

State courts differ

Most states have rules modeled on the federal ones, but the details diverge in ways that lose cases. A few examples, which you should verify against the current rule in your court:

• Texas. Tex. R. Evid. 902(10) permits a business records affidavit, and a party that plans to use one at trial must serve the affidavit and records at least 14 days before trial.
• New York. CPLR 4518 is the statutory exception, and CPLR 3122-a governs certified records produced in response to a nonparty subpoena. New York's law on outsider information remains close to Johnson v. Lutz, its own case.
• California. Evidence Code § 1271 states the exception, and §§ 1560 through 1562 cover copies produced under subpoena with a custodian's affidavit.

Not every state has adopted counterparts to Rule 902(13) and (14), or the 2014 burden language in Rule 803(6)(E). Do not assume that a federal form travels.

Worked example: a mixed exhibit list

Suppose Fernhill Foods sues its former logistics vendor, Tallgrass Freight, for spoiled product, and plans five exhibits. Each needs a different route.

Exhibit 1, the contract. A verbal act. Authentication is by the signer, or by admission in the pleadings.

Exhibit 2, Tallgrass's dispatcher's text to a Fernhill buyer: "Reefer on truck 12 failed Tuesday, our bad." This is an opposing party's employee's statement under 801(d)(2)(D), offered by Fernhill. Fernhill must show the dispatcher worked for Tallgrass and that reefer status was part of the job. Authentication could come from the buyer, the phone number, and the content. The same text offered by Tallgrass, in support of an argument that it promptly disclosed, would be hearsay.

Exhibit 3, temperature logger data from the trailer. Machine-generated. Fernhill needs a Rule 902(13) certification or a witness on calibration and download. Hearsay does not apply, but a cross-examiner will ask whether the sensor was calibrated.

Exhibit 4, Fernhill's spoilage report, written by its quality manager after the buyer called a lawyer. Trouble. It looks like Palmer and Sinkovich. If Fernhill writes such a report for every rejected load, the routine argument improves, but the timing and the author's knowledge of the dispute will be raised. The manager should testify, and use the report to refresh recollection under Rule 612 if needed.

Exhibit 5, a chart totaling 2,300 rejected-case records. Rule 1006, if the underlying receiving records are themselves admissible under 803(6) and were made available in time. The chart is evidence once admitted. A separate timeline slide used in closing is a Rule 107 aid.

The list is why experienced trial lawyers build an admissibility theory for each exhibit at the start of discovery, while a custodian can still be found. Do the opposite and you end up where Harlow's owner started, with a true invoice and a sustained objection. For how those theories get tested before trial, see Motion in Limine Toolkit: Standard Motion Banks, Opposition Frameworks, and Trial Objection Plans.

Further reading

The standard works are Michael H. Graham, Handbook of Federal Evidence, and Weinstein's Federal Evidence. Edward J. Imwinkelried's Evidentiary Foundations is the source for the computer-record foundation used in Vinhnee. On electronic evidence, Judge Grimm's Lorraine opinion remains a better free treatise than most paid ones. UpLaw (uplaw.us) is a convenient place to read the opinions cited here in full.

This article is general information about federal evidence law, and it isn't legal advice on any particular case or exhibit. If an exhibit list or a custodian problem is keeping you up at night, a short conversation with trial counsel early in discovery tends to cost far less than one the week before trial.

Related Documents

Related Articles

• Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges: authorship and authenticity for chats and social media, which this article only touches.
• Capturing the Web: A Practitioner's Guide to Authenticating Website Screenshots as Evidence in Federal Court: the parallel problem for web pages and screenshots.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: records you cannot lay a foundation for if you did not preserve them.
• Summary Judgment Under Rule 56: Winning and Surviving Before Trial: how Rule 56(c)(2) objections fit into motion practice.
• Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination: when a data analysis stops being a record and starts being an opinion.
• Rule 502 and Inadvertent Production: Waiver, Clawback Agreements, and Why Every Case Needs a 502(d) Order: from this batch; what to do when reviewing a production turns up a privileged record.
• Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse: from this batch; the Rule 26(a)(3) objection deadline is one of many that do not forgive.

Related Guides

• Laying the Foundation for Business Records and Defeating Hearsay Objections: A Practical Guide: the step-by-step companion to this article, with sample questions and timing.
• Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide: collection and proof for messaging evidence.
• Preparing Exhibits and Demonstratives for Trial: A Practical Guide: exhibit lists, stipulations, and Rule 107 aids.
• Defending a Debt Collection Lawsuit: A Practical Guide: the same foundation fight from the consumer defendant's side.

Related Checklists

• Hearsay and Business Records Checklist: A Practical Checklist: a phase-by-phase desk checklist for the same material.
• Motion in Limine Checklist: A Practical Checklist: for bringing hearsay disputes to the court before trial.

Related Toolkits

• Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts: certifications, notices, foundation scripts, and response charts ready to adapt.
• Motion in Limine Toolkit: Standard Motion Banks, Opposition Frameworks, and Trial Objection Plans: motion banks and trial objection plans.