Business Records Exception

The Business Records Exception is an exception to the evidentiary rule excluding hearsay, only if evidence satisfies the requirements outlined below. This exception is very common because every case, especially family law and estate litigation cases, uses records as evidence. These records can range from medical records to school records to accounting records.

The introduction of business records in trial used to come with a string of witnesses to authenticate the records, which was a time-consuming and costly process. However, with certified affidavits, the process of introducing written records is made much more time and cost-effective. To take advantage of this procedural tool, your attorney must understand the process for both obtaining and using these affidavits. Managing Attorney Van Smith has not only taught everyone at Smith Strong the importance of these affidavits, but he has taught a room full of attorneys about the process at a Continuing Legal Education event for lawyers. This knowledge and expertise will be used to advocate on your behalf.

The Statutes

Virginia Rule of Evidence 2:803(6) – Hearsay Exceptions Applicable Regardless of Availability of Declarant: Records of a Regularly Conducted Activity

Va. R. Evid. 2:802(6) lays out the requirements for a business record to be exempted from hearsay. 

A record of acts, events, calculations, or conditions if:

(A) the record was made at or near the time of the acts, events, calculations, or conditions by—or from information transmitted by—someone with knowledge; 

(B) the record was made and kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; 

(C) making and keeping the record was a regular practice of that activity; 

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 2:902(6) or with a statute permitting certification; and 

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Virginia Rule of Evidence 2:902(6) – Self-Authentication: Certified Records of a Regularly Conducted Activity

As referenced in Va. R. Evid. 2:803(6) records may be deemed self-authenticating if they meet certain standards. The standards are listed in, specifically subpart (a).

In any proceeding where a business record is material and otherwise admissible, authentication of the record and the foundation required by subdivision (6) of Rule 2:803 may be laid by (i) witness testimony, (ii) a certification of the authenticity of and foundation for the record made by the custodian of such record or other qualified witness either by affidavit or by declaration pursuant to Code § 8.01-4.3, or (iii) a combination of witness testimony and a certification.

However, as subpart (b) of 2:902 explains, each party has certain obligations before the record can be considered self-authenticated. 

The proponent of a business record shall (i) give written notice to all other parties if a certification under this section will be relied upon in whole or in part in authenticating and laying the foundation for admission of such record and (ii) provide a copy of the record and the certification to all other parties, so that all parties have a fair opportunity to challenge the record and certification. The notice and copy of the record and certification shall be provided no later than 15 days in advance of the trial or hearing, unless an order of the court specifies a different time. Objections shall be made within five days thereafter, unless an order of the court specifies a different time. If any party timely objects to reliance upon the certification, the authentication and foundation required by subdivision (6) of Rule 2:803 shall be made by witness testimony unless the objection is withdrawn.

Sections (c) and (d) cover housekeeping issues. 

(c) A certified business record that satisfies the requirements of this section shall be self- authenticating and requires no extrinsic evidence of authenticity.

(d)A copy of a business record may be offered in lieu of an original upon satisfaction of the requirements of Code § 8.01-391(D) by witness testimony, a certification, or a combination of testimony and a certification.

Affidavit Pros and Cons

The ability to use business record affidavits in court has only been permissible since 2014, but has generally been a great tool for attorneys. The affidavit allows attorneys to save time in court by skipping the unnecessary questioning of witnesses and also saves clients money through both the hourly rates of their attorney and witness expenses. However, using affidavits can be a double-edged sword for the busy lawyer, as objections must be made within just five days of receiving the materials, unless otherwise specified by the court. This fact has raised some opposition to the statute because traditionally attorneys could, and still can, stipulate to the authenticity of records within a reasonable time, but the new rules add time pressure. See example affidavit below.

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

John Doe, Plaintiff,

v.    Case No.: XXXXXXXX

Jane Doe, Defendant.

AFFIDAVIT OF CUSTODIAN RECORDS

PERSONALLY appeared before me, _____________________________, who first being sworn, testifies:

1. I am ___________________________________. I am employed by _____________________________ in the position of ________________________.

2. I am the duly authorized and designated custodian of records for ________________________ and am duly authorized to certify such records.

3. I certify that the attached documents, which were provided to Smith Strong, PLC per a subpoena are true and correct copies of the original documents from ______________________. The personnel of __________________________ in the ordinary course of business prepared said records.

Signature: ______________________ Printed Name: ______________________

STATE/COMMONWEALTH OF ____________, at large: CITY/COUNTY of _____________________, to-wit:

I, _________________________, a Notary Public, do hereby certify that the foregoing Affidavit of___________________, was subscribed, affirmed and sworn to before me on the __________ day of ______________, ________.

_________________________________ Notary Public

My commission expires: ____________________________

How We Can Help         

         With complicated statutes and strategic decisions being a such important parts of the litigation process, having the right lawyer is imperative. The lawyers at Smith Strong work on domestic relations cases every day, which has given them the knowledge and experience to interpret these statutes and guide you along the right path in your matter. Please call (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg) to schedule an appointment if you decide you need a lawyer in your case.

Editorial Assistance By: Michael Gee