How the documents in every commercial case actually get admitted.
Esshaki Legal Media TeamCurrent as of June 2022
Records of a regularly conducted activity are admissible despite being hearsay,
which is what makes documentary proof possible.
The foundation. The record was made at or near the time by, or from
information transmitted by, someone with knowledge; it was kept in the course of
a regularly conducted activity; making it was a regular practice; and the
foundation is shown by a custodian or other qualified witness, or by
certification.
Certification avoids live testimony. Written notice to the other parties and
an opportunity to inspect are required, and the deadlines are short.
Trustworthiness. The opponent may still exclude the record by showing that
the source of information or the circumstances indicate a lack of
trustworthiness — the usual argument being that the record was prepared in
anticipation of litigation rather than in the ordinary course.
Records of another business received and relied on are frequently
admissible where the receiving business integrated them into its own records and
relied on their accuracy. That saves a great deal of subpoena practice.
Absence of a record is admissible to prove an event did not occur, on the
same foundation.
Practical planning. Identify the custodian for every category of document
early. A key exhibit with no sponsor is discovered at the worst moment.