October 26, 2016 Practice Points

The Magic of Fed. R. Evid. 902(11) and (12)

By Richard H. Willis and Ashleigh R. Wilson

Anyone who does automotive litigation has learned that car companies don't really manufacture things anymore. They are primarily an assembler of millions of components, systems, and sub-assemblies that they buy from other component part manufacturers. These component part suppliers are rarely down the street, and are often in foreign countries with both language and discovery barriers. Getting the documents you need from them to prove your case can be a challenge for both sides of a typical products liability case.

Federal Rules of Evidence 902(11) and (12) make your job of authenticating domestic and foreign records and laying an evidentiary foundation for them at trial much easier. To utilize the provisions under Rule 902(11) and (12), always include an affidavit or certification with your document requests, and make sure you comply with the other formal specifics set out in these rules. If you do, the documents will be automatically qualified as records of a regularly conducted activity under Federal Rule of Evidence 803(6) without the need for a records custodian's deposition. If you forget to do this until a few weeks before trial, you are going to have a hard time getting these records admitted.

Some state courts, like South Carolina, do not have a corresponding state rule or procedure. In that case, you have to figure out a way to take a records custodian's deposition if you want to get third party records admitted.

Remember, just because the record itself qualifies as an exception to the rule against hearsay, there may be additional hearsay within the document. So keep Federal Rule of Evidence 805 in mind as well. You don't want to find yourself at trial, unable to lay a foundation for your key documents. That can ruin your day, if not your career.

Finally, don't count on these records coming in through the back door of Federal Rule of Evidence 703. Just because your expert has relied on a document doesn't make it admissible. Rule 703 applies a "reverse Rule 403 test." To be permitted to disclose the facts or data to the jury, you must be able to show that their probative value "substantially outweighs" their prejudicial effect. This turns Rule 403 upside down. Not being able to cross-examine a document or its authors or its underlying factual basis is pretty prejudicial. In fact, it is one of the primary reasons for the rule against hearsay, to preserve the effectiveness of cross-examination to get at the truth.

The moral of this cautionary tale is to keep your eyes on the trial when gathering information. Always be thinking, "How am I going to authenticate these documents, lay a foundation for them, and get them admitted?" That is what separates a trial lawyer from mere litigators.

Richard H. Willis is a co-managing partner and Ashleigh R. Wilson is an associate at Bowman and Brooke LLP in Columbia, South Carolina.


Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).