Hearsay and Business Records Checklist: A Practical Checklist

How to use this checklist

Run one copy of Phases 1 through 3 for each important exhibit or exhibit family, and one copy of the rest for the case. Phases 4 through 7 are written mainly for the proponent, the party offering the record. Phase 8 is for the opponent. Phases 9 through 11 apply to both, and Phase 12 covers criminal cases. Items assume the Federal Rules of Evidence and a federal civil trial unless they say otherwise, so substitute your state's rule numbers where needed and check each one, because states vary on certification and notice.

For the reasoning behind these tasks, read Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence. For the sequence in narrative form with sample examinations, use Laying the Foundation for Business Records and Defeating Hearsay Objections: A Practical Guide. For forms that carry out these tasks, go to Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts.

Phase 1: Set the timeline at the start of the case

• Read the scheduling order and the judge's standing orders for exhibit dates. Local orders may change the default timing in Fed. R. Civ. P. 26(a)(3)(B) and Fed. R. Civ. P. 16. Note: Default timing is disclosures at least 30 days before trial and objections within 14 days after. Your order may set a joint exhibit list instead.
• Open an exhibit admissibility matrix with one row per exhibit. Columns: fact proved, purpose, route, foundation source, status. See Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007) for the sequence of hurdles (relevance, authenticity, hearsay, original writing, unfair prejudice).
• Add records witnesses to initial disclosures. Fed. R. Civ. P. 26(a)(1) and the exclusion remedy in Rule 37(c)(1).
• Put a hold on the systems as well as the documents. Keep audit logs, data dictionaries, and schema history. Litigation Hold and Evidence Preservation Checklist: A Practical Checklist gives the task list.
• Identify former employees and departing custodians now. A qualified witness can be anyone familiar with the practice, so have a substitute in mind (Thanongsinh v. Board of Education, 462 F.3d 762 (7th Cir. 2006)).
• Calendar the last date for serving Rule 36 requests and Rule 45 subpoenas. Work backward from the discovery cutoff. Rule 36 responses take 30 days.

Red flag: If the plan for your central records is "the bookkeeper will explain it at trial," and the bookkeeper has not been asked, you do not yet have a plan.

Phase 2: Classify each exhibit (offering side)

• Ask whether the document is offered for its truth. Fed. R. Evid. 801(c). Note: Write the actual sentence you need the jury to believe. If you cannot write it, you may not need the truth of the document.
• Test for a verbal act. Contracts, notices, demands, releases. Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994). Note: A factual recital inside the contract is not protected by this label.
• Test for notice or effect on the listener. Is notice actually in dispute? Draft the Rule 105 instruction now, since United States v. Cone, 714 F.3d 197 (4th Cir. 2013) found error where the jury was left to judge the believability of notice-only emails.
• Sort commands and questions from assertions. United States v. Safavian, 435 F. Supp. 2d 36 (D.D.C. 2006).
• Identify every speaker in a thread. One email chain can have several declarants and several routes.
• Check Rule 801(d)(2) for opposing party statements. Identify the subsection: (A) own, (B) adopted, (C) authorized, (D) agent or employee, (E) coconspirator. Fed. R. Evid. 801(d)(2). Note: The rule runs only "against an opposing party." Your own client's helpful email gets no help here.
• Gather independent proof of employment and scope for (D). The statement alone does not establish the relationship. Note: Personal knowledge is not required. Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978).
• Check forwards and replies for adoption. Sea-Land Service, Inc. v. Lozen International, LLC, 285 F.3d 808 (9th Cir. 2002).
• Consider the successor sentence of Rule 801(d)(2). Since December 1, 2024, a statement admissible against a declarant or principal is also admissible against a party whose claim or liability is directly derived from that person.
• Track the Rule 801(d)(1)(A) amendment. By order of April 8, 2026, effective December 1, 2026 unless Congress acts, a testifying witness's prior inconsistent statement need not have been under oath at a proceeding to be used substantively, subject to Rule 403. Plan cross-examination accordingly.
• Decide if a live witness with personal knowledge can prove the fact without the document. Watch Rule 1002 if you are proving the writing's content.

Red flag: "It's our email, so it's a business record" is the sentence that loses the exhibit. United States v. Daneshvar, 925 F.3d 766 (6th Cir. 2019).

Phase 3: Test the Rule 803(6) elements (offering side)

• Element A: made at or near the time. Fed. R. Evid. 803(6)(A). Note the event date and the entry date.
• Element A: by or from someone with knowledge. Map the chain from observer to record. Each link should be acting in the regular course. Note: The original observer need not be named if it was the regular practice to get the information from such a person (Saks International, Inc. v. M/V Export Champion, 817 F.2d 1011 (2d Cir. 1987)).
• Element B: kept in the course of a regularly conducted activity. Rule 803(6)(B). Identify the activity (billing, dispatch, claims handling).
• Element C: making the record was a regular practice. Rule 803(6)(C). Get the policy, form, or schedule that shows this.
• Element D: choose the witness or certification. Rule 803(6)(D). Note: The witness must know how records are created, not merely where they are stored. Rambus, Inc. v. Infineon Technologies AG, 348 F. Supp. 2d 698 (E.D. Va. 2004).
• Element E: anticipate the trustworthiness attack. Rule 803(6)(E), with the burden on the opponent since the 2014 amendment.
• Run the Palmer test. When and why was this record made? Palmer v. Hoffman, 318 U.S. 109 (1943). Note: Motive matters, and role can matter too (Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975)). Would this report exist if no dispute were in view?
• Look for an outside author on an investigative report. Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200 (4th Cir. 2000).
• Check whether an audit was routine or triggered. Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir. 1984).
• Check letters written in a dispute. Timberlake Construction Co. v. U.S. Fidelity & Guaranty Co., 71 F.3d 335 (10th Cir. 1995).
• For email or chat, show a specific regular practice. Who was required to send this kind of message, when, and for what use? Cone.
• For a report run for trial, confirm that the underlying data qualifies. United States v. Fujii, 301 F.3d 535 (7th Cir. 2002); U-Haul International, Inc. v. Lumbermens Mutual Casualty Co., 576 F.3d 1040 (9th Cir. 2009).
• Document what the query did. Note any joins, filters, mappings, or computed fields. Note: The more the report transforms the data, the less it resembles a record and the more it resembles an analysis. Consider Rule 1006 or an expert (Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination).
• Plan a Rule 803(7) foundation if you are proving absence. A record of that kind must regularly have been kept. Fed. R. Evid. 803(7).
• For government records, use Rule 803(8) and a certified copy. Fed. R. Evid. 803(8); Rule 902(1), (2), (4); Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) for conclusions in investigative reports.
• Keep Rule 807 in reserve for near misses. Fed. R. Evid. 807 requires written notice, the substance, and the declarant's name.

Red flag: A record created after a lawyer got involved, by someone who knew about the dispute, offered by the party it helps. Expect to lose unless you can show it would have been made anyway.

Phase 4: Handle outsider information and third-party records (offering side)

• Mark every sentence that came from outside the business. Fed. R. Evid. 805; Johnson v. Lutz, 253 N.Y. 124 (1930).
• Find a separate route for each one. Medical diagnosis (Rule 803(4)), party statement, or verification. Note: A business's standard practice of verifying the information can do the job. United States v. Browne, 834 F.3d 403 (3d Cir. 2016) discusses this.
• Decide whether to redact. Offering the good entries and removing the rest may be better than losing the page. Watch for a Rule 106 response.
• Check the integration facts for received documents. Kept in regular course, relied upon, and a substantial interest in accuracy. 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); United States v. Childs, 5 F.3d 1328 (9th Cir. 1993); United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007). Note: Mere receipt is not enough. Look for the check, the approval stamp, or the payment.
• Ask whether a certification from the originator would be easier. A short nonparty certificate can avoid a fight over adoption altogether.
• Note the state-court rule for purchased or boarded data. Debt portfolios are the common fight. Debt Collection Lawsuit Response Checklist: A Practical Checklist covers the consumer's side.

Phase 5: Handle system data and AI output (offering side)

• Split each export into human-entered and machine-generated fields. Use the data dictionary. United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015).
• Treat machine fields as an authentication question. Fed. R. Evid. 901(b)(9); United States v. Washington, 498 F.3d 225 (4th Cir. 2007); United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008); United States v. Channon, 881 F.3d 806 (10th Cir. 2018).
• Treat typed fields as hearsay. Apply Rule 803(6) or Rule 801(d)(2) to them.
• Confirm clock source, time zone, and retention window. These are the first cross-examination questions.
• Identify the data's path. Production or reporting warehouse? Note ETL jobs (the scheduled extract, transform, and load steps that move data), failed runs, and migrations.
• Prepare for a demanding judge. In re Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) upheld exclusion even without an objection.
• Confirm that a printout counts as an original. Fed. R. Evid. 1001(d), if it accurately reflects the information, and Rule 1003 for duplicates.
• If the source is an AI tool, ask what a human contributed. Who wrote the prompt, selected the data, and reviewed the output? Is the underlying source available? Note: No rule is specific to AI. The committee's May 2026 report took no action on proposed Rule 707, and its October 2026 agenda book describes the published version as withdrawn with a revised draft under study. Expect courts to look to Rule 702 standards through Rules 104(a), 403, and 901(b)(9). Offer the underlying source where you can.
• Test for inherited hearsay in AI summaries. A summary of customer complaints still carries the customers' statements. Rule 805.
• Keep a distinction for deepfake claims. The committee has held a draft Rule 901(c) in reserve, so the ordinary Rule 901 standard governs. Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges covers those challenges.

Red flag: A witness who says "the system is reliable" but cannot say how data gets in, what could make it wrong, or how anyone would know.

Phase 6: Lock down foundation in discovery (offering side)

• Serve Rule 36 requests on genuineness and foundation facts. Fed. R. Civ. P. 36, with Rule 37(c)(2) for expenses after an unjustified denial.
• Add a records topic to the Rule 30(b)(6) notice. Fed. R. Civ. P. 30(b)(6). See Preparing and Defending a Rule 30(b)(6) Deposition. Note: Rule 32(a)(3) lets an adverse party use the designee's deposition for any purpose.
• Send a stipulation proposal covering authenticity and foundation. Offer reciprocity.
• Serve Rule 45 subpoenas on nonparty custodians with a form certification attached. Fed. R. Civ. P. 45, including prior notice to the parties under Rule 45(a)(4). Use Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege.
• Consider a deposition on written questions for a distant custodian. Fed. R. Civ. P. 31, with Rule 32(a)(4)(B) for trial use.
• Plan messaging evidence through the account holder. 18 U.S.C. § 2702 limits content disclosure by platforms. Messaging and Social Media Evidence Checklist: A Practical Checklist has the steps.
• Designate foundation testimony for trial use where needed. Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts has the chart.

Phase 7: Certifications and notice (offering side)

• Match the record to the correct subsection. Rule 902(11) for domestic records; 902(12) for foreign records in civil cases; 902(13) for system output; 902(14) for verified copies. Use 18 U.S.C. § 3505 for foreign records in criminal cases.
• State the certifier's qualifications with facts. Role, tenure, and basis of knowledge.
• Track each element of Rule 803(6)(A) through (C). See Adefehinti.
• Use a declaration that complies with 28 U.S.C. § 1746. "Under penalty of perjury," dated and signed.
• Identify the records exactly. Bates ranges or hash values. No "all documents produced."
• For 902(13), describe the process and how accuracy is known. See the 2017 committee note.
• For 902(14), state the hash algorithm and values. United States v. Dunnican, 961 F.3d 859 (6th Cir. 2020).
• Serve written notice and make the records available. Required by Rule 902(11), and by cross-reference in (12), (13), and (14). Keep proof of service. Note: "Reasonable" has no fixed number of days. Technical items need more lead time, because the other side may need an expert.
• List fallback grounds in the notice. Add Rule 807 and Rule 1006 where they apply.
• Do not certify what is not a business record. Safavian refused a certification covering 467,747 emails that were not offered under Rule 803(6). Browne rejected self-authentication for Facebook chats; compare United States v. Hassan, 742 F.3d 104 (4th Cir. 2014), and United States v. Gal, 606 F. App'x 868 (9th Cir. 2015) on what a provider's certificate can show.
• Prove authorship separately. United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) found error without it. For web content, use Authenticating Website Evidence: A Practical Checklist.
• Check the state version. For example, Tex. R. Evid. 902(10) requires service at least 14 days before trial, and New York uses CPLR 3122-a and 4518.

Red flag: A certificate served in the final week before trial, for a technical system, with a certifier nobody has heard of. It invites a motion to exclude and a continuance you may not want.

Phase 8: Attack a weak foundation (opposing side)

• Sort the opponent's list by route. Ask yourself which of Phases 2 through 5 the proponent seems to rely on.
• Depose the custodian or designee. Who enters the data? When? What are the error rates? Can entries be edited? Who ran the export?
• Compare the record's date to the dispute timeline. Palmer, Sinkovich, United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993).
• Request the backup for every summary. Rule 1006(b).
• Look for outsider statements and object on Rule 805. Ask for redaction instead of total exclusion when that is more credible.
• Serve written objections to certifications with reasons. Not one line. Rule 803(6)(E) puts the trustworthiness burden on you, though argument from the circumstances can carry it.
• Object to late notice right away. Explain the prejudice and what you would have done.
• Ask for a limiting instruction for any limited-purpose document. Rule 105.
• Object to the machine's inputs, not only its outputs. The hearsay objection alone failed in Lizarraga-Tirado. Add authentication under Rule 901(b)(9).
• Use the 2019 note against a loose Rule 807 offer. Ask what better evidence exists and why it wasn't obtained.
• Keep what you can use. A record excluded for its truth might still come in for impeachment, so plan for that.

Red flag (for the objector): A general objection to a whole production will likely be overruled, and it spends your credibility. Choose the five exhibits that matter.

Phase 9: Summaries and illustrative aids (both sides)

• Decide what each chart is. Rule 1006 is evidence. Rule 107 is not. See United States v. Bray, 139 F.3d 1104 (6th Cir. 1998) and United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006) for the older reasoning.
• Confirm that the underlying material is voluminous, admissible, and available. The materials need not be admitted, but they must qualify. Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154 (11th Cir. 2004).
• Remove argument and characterization from a Rule 1006 chart. Peat ordered a new trial on the trade secrets claim over a compilation of this kind.
• Identify the sponsoring witness who prepared or supervised the chart.
• Ask whether the "summary" is really the record itself. U-Haul found Rule 1006 inapplicable where computer summaries were the records.
• For a Rule 107 aid, prepare for balancing. Utility must not be substantially outweighed by prejudice, confusion, or similar dangers.
• Keep Rule 107 aids out of the jury room unless consent or good cause applies. Rule 107(b).
• Make the record. When practicable, an aid used at trial must be entered into the record. Rule 107(c). Use Preparing Exhibits and Demonstratives for Trial: A Practical Guide for logistics.

Phase 10: Summary judgment and early hearings (both sides)

• Support the record with a declaration on personal knowledge. Fed. R. Civ. P. 56(c)(4) and § 1746.
• State how each item would be admissible at trial if challenged. Rule 56(c)(2); 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); Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532 (4th Cir. 2015).
• Explain your objections. Sandoval v. County of San Diego, 985 F.3d 657 (9th Cir. 2021) condemned one-word objections. Coordinate with Summary Judgment Motion Checklist: A Practical Checklist.
• Do not assume a preliminary injunction record is held to the same standard. Hearsay may be considered at that stage. Asseo v. Pan American Grain Co., 805 F.2d 23 (1st Cir. 1986); Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010).
• Check Rule 1101 and forum rules for hearings outside the rules' reach.

Phase 11: Pretrial filing and trial (both sides)

• Exchange and file exhibit lists on time. Fed. R. Civ. P. 26(a)(3). Use Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions for forms.
• Serve objections within the deadline. Hearsay and foundation objections are waived if not raised, unless excused for good cause. Only Rules 402 and 403 are excepted. If you miss the date, see Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse.
• File motions in limine for the big disputes. A definitive ruling need not be renewed. Rule 103(b). See Motion in Limine Checklist: A Practical Checklist.
• Have the preliminary-fact evidence ready. The court decides under Rule 104(a), is not bound by evidence rules except privilege, and applies a preponderance standard under Bourjaily v. United States, 483 U.S. 171 (1987). Note: Amendments to Rule 104(a) and (b) were published for comment in August 2026. They would write the preponderance standard into the text and rework Rule 104(b). They are proposals, not law.
• Prepare the witness on the record itself. Include what columns mean. Watch Rule 612 on materials used to refresh.
• State your ground when you offer an exhibit, and give any alternative. "Under 803(6), and alternatively as a statement under 801(d)(2)(D)."
• Object in time, and state the specific ground. Rule 103(a)(1).
• Make an offer of proof on any exclusion and mark the exhibit. Rule 103(a)(2); Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win explains why it matters on appeal.
• Use refreshing or recorded recollection if the record stays out. Rule 612 and Rule 803(5).
• Ask for the limiting instruction at the moment of admission, and again in the charge. Rule 105.
• Consider Rule 106 before offering a slice of a thread. Rule 106 lets the other side bring in the rest over a hearsay objection.
• Confirm that what was promised came in. Before resting, walk the matrix and check that each exhibit you need was admitted, not merely discussed.

Red flag: Exhibits that were "published" on screen but never moved into evidence. Check the clerk's list on every break.

Phase 12: Criminal cases

• Separate the hearsay question from the confrontation question. Crawford v. Washington, 541 U.S. 36 (2004).
• Ask if the record exists for evidence. If so, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) applies.
• Ask whether a surrogate is standing in for the analyst. Bullcoming v. New Mexico, 564 U.S. 647 (2011); Smith v. Arizona, 602 U.S. 779 (2024).
• Confirm that certificates only authenticate. United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011); United States v. Ellis, 460 F.3d 920 (7th Cir. 2006).
• Check Rule 803(8)'s criminal limits. Rule 803(8)(A)(ii) and (iii); United States v. Oates, 560 F.2d 45 (2d Cir. 1977).
• Follow Rule 803(10)'s written notice process for absence-of-record certifications. Rule 803(10)(B).
• Do not use Rule 902(12) for foreign records. It is limited to civil cases. Use § 3505.

This checklist is general information for organizing the work. It does not account for your court's rules, your judge, or your facts, so don't treat it as legal advice on your exhibits.

Related Documents

Related Articles

• Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence: the doctrine and leading cases behind this list.
• Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges: authorship and authenticity for message evidence.
• Federal Rule of Evidence 403 and Unfair Prejudice: A Practical Guide: the balancing that follows admissibility.
• Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse: from this batch; why missed objection deadlines are hard to fix.

Related Guides

• Laying the Foundation for Business Records and Defeating Hearsay Objections: A Practical Guide: the sequence in narrative form, with sample examinations.
• Preparing Exhibits and Demonstratives for Trial: A Practical Guide: marking and presenting exhibits and aids.
• Preparing and Defending a Rule 30(b)(6) Deposition: preparing a records designee.
• Preparing Yourself or Your Witness for a Deposition: A Practical Guide: from this batch; getting a witness ready for testimony.

Related Checklists

• Motion in Limine Checklist: A Practical Checklist: bringing hearsay disputes to the court before trial.
• Summary Judgment Motion Checklist: A Practical Checklist: record support at summary judgment.
• Litigation Hold and Evidence Preservation Checklist: A Practical Checklist: preserving the records you plan to offer.
• Messaging and Social Media Evidence Checklist: A Practical Checklist: message and social media evidence.
• Authenticating Website Evidence: A Practical Checklist: web page and screenshot exhibits.
• Debt Collection Lawsuit Response Checklist: A Practical Checklist: foundation challenges in collection suits.

Related Toolkits

• Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts: forms that carry out Phases 4 through 11.
• Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege: nonparty subpoenas.
• Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts: designation charts for foundation testimony.
• Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions: trial exhibit forms.