Do you need to introduce business records—bank statements, company business journals, diary of a call-girl with her clients’ names and charges, records of the daily weight-checks for the tiger cubs in Dream World, list of tardies that the child’s school keeps?
Do you wake up in the middle of the night wondering whether to subpoena the custodian of—as Rule 803(6) puts it—
memorandum, report, record, or data compilation
kept in the course of a regularly conducted business activity of a
business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit?
Good news: the North Carolina Court of Appeals just made your life easier. Simon v. Simon, CoA 13-249 (December 3, 2013) reiterates that no live witness testimony is necessary to introduce the 803(6) records. Just bring an affidavit of a custodian. Track the 803(6) language. That will do it. Simon, Slip Op. at 15-16.
I know that this is not exactly a first impression issue. But in Simon the matter of affidavit vs. live testimony was dispositive. Ms. Simon did not bring a live witness to introduce her husband’s payment journals. What she did bring, however, was an affidavit of the custodian which tracked all the requirements of Rule 803(6). The Iredell County judge Edward Hedrick IV excluded the journals for lack of—as he colorfully put it,
testimony from this witness stand through that microphone.
The North Carolina Court of Appeals disagreed. Writing for the Court, Judge Elmore reiterated that the affidavit of a custodian of records gave sufficient foundation. Simon is remanded for consideration of the excluded records.
I do not know about you, but I am crossing the business records off the list of things that keep me awake at night.by