This article was published in the Summer 2004 edition of the Oregon State Bar's Litigation Journal.
One of the keys to an effective and persuasive trial presentation is to reduce, if not eliminate, the need to provide a proper foundation for the admissibility of key documents. Particularly in a large document case, one can undermine the effectiveness of the trial presentation by having to ask a series of boring, routine questions, attempting to establish the foundation for admissibility of each document. Moreover, you run the risk of not getting the answers you need, and the document will not be admissible.
In federal court, most admissibility issues are covered by pretrial proceedings. In state court and arbitration, the trial judge or the arbiter often encourages the parties to exchange trial exhibit documents and agree on their admissibility or at least focus on meaningful objections for only a few documents. Experienced trial lawyers are generally willing to stipulate to the admissibility of all but a few of such documents, particularly if they have been marked and discussed during depositions.
But what happens if you have an adversary who is unwilling to stipulate to the admissibility of documents at trial or a multiparty case (when it is difficult from a logistical standpoint to obtain stipulations from all parties on the admissibility of documents)? One solution, of course, is to create the necessary foundation for the admissibility of documents during depositions. This, however, demands a substantial amount of deposition time in an era in which shorter depositions are encouraged (and, in federal court, required). Thus, it is usually not done.
Alternatively, you may want to consider the following suggestions.
1. Thoughtful Requests for Production.
You may want to formulate your requests for production on the basis of the admissibility of the documents to be produced. For instance, your first request for production might request only documents meeting the four-element test of documents produced in the regular course of business (Rule 803(6) of Federal Rules of Evidence ("FRE")). A request can be fashioned to request documents:
- (a) That have been sent, received, or generated and maintained in the regular course of business or in the regular course of a regularly conducted activity;
- (b) For which it is the practice of the producing party to send, receive, or generate and maintain in the regular course of its business or in the course of its regularly conducted activity;
- (c) That were received, sent, or generated and maintained by someone with personal knowledge of the documents’ contents or from information transmitted by a person with personal knowledge of the content of the documents; and
- (d) That were sent, received, or generated and maintained at or near the time of the information set forth in the documents.
Similarly, the requests for production can request, initially, documents that the adverse party admits are "genuine and authentic" by fashioning a request for production that requests only documents represented by the producing party to have been prepared by the author who wrote them and to be genuine and authentic. The request for production can be followed by a broader request for production that does not require as a precondition that the producing party admit the documents to be authentic.
All documents produced in response to such a request should be Bates-stamp numbered and a record kept that they were produced in response to a request that fulfilled all the requirements of FRE 803(6). A similar strategy can be developed for other exceptions to the hearsay rule, such as past recollection recorded.
Then, just before trial, if the adverse party will not agree that the records are admissible under the business-record rule (FRE 803(6)) or the other pertinent rule under which the documents were produced, a motion can be filed with the trial judge under FRE 104(a) supported by an affidavit asking that the trial court rule in advance that the documents so produced are authentic and are exceptions to the hearsay rule under the exception you set forth in your requests for production.
2. Request for Admission.
Alternatively, or in addition to thoughtfully designed requests for production that seek admissions as to admissibility, pretrial admissibility and authentication can be obtained through requests for admission. Again, the request for admission simply identifies a document that has been produced and asks the requesting party to admit that the elements necessary for an exception to the hearsay rule and admissibility or the elements of authentication are present. If the adverse party refuses to admit what he or she should admit and you are forced to incur attorney fees and time substantiating admissibility, a sanction of attorney fees is available under the request-for-admission rule (see FRCP 36A, 37(c)(1)).
It has been my experience that federal court judges are more than willing to allow you as many requests for admission (FRCP 36) as you need if their purpose is to encourage a recalcitrant adversary to admit that documents you plan to use at trial are authentic or kept in the regular course of business or constitute past recollection recorded. Trial judges, like good trial lawyers, want the trial to go smoothly and efficiently and not be repeatedly bogged down by trial document foundation issues that can and should be worked out in advance.
3. Federal Rule of Evidence Section 104.
FRE 104(a) provides in pertinent part:
"Preliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * *. In making its determination the court is not bound by the rules of evidence except those with respect to privileges."
Based on the foregoing, you can ask a judge to determine the admissibility of trial document exhibits in advance of trial and can substantiate their admissibility by affidavit. For instance, if you have hundreds of photographs that you wish to show at trial by PowerPoint, you can have them authenticated by affidavit and ruled admissible before trial. The same method can be used for certain types of electronic evidence, computer records, and videos. Good trial lawyers try to resolve all these issues with the trial judge in advance of trial.
On the issue of business records, if you have a multiparty case or a particularly recalcitrant adversary who will not admit that records constitute business records (an exception to hearsay under FRE 803(6)), consider filing a pretrial motion with the court, asking: (a) that the parties exchange their trial evidence documents by a particular date, (b) that each side serve on the other side its authentication and admissibility objections, and (c) that to the extent that one of the parties, including yourself, raises business-record objections that another party deems frivolous, the court order that party to produce for a pretrial hearing the person most knowledgeable within its organization concerning the business-record requirements for the document so that the adverse party has an opportunity to substantiate the business-record foundation for the document. Of course, neither the court nor the party normally wants to deal with having to produce the authenticating witness, and as a result, this procedure may result in a negotiated stipulation between attorneys of record.
4. Thoughtfulness and Ingenuity.
No doubt many of you have found other methods to be as effective as or more effective than the ones suggested in this column. The point, however, is to deal with authentication and admissibility of trial exhibits, particularly document exhibits, well in advance of trial. Do not hesitate to consider using requests for production, requests for admission, and pretrial motions under FRE 104 (or its federal counterpart) to resolve these issues in advance of trial so that your trial presentation will be smooth, uninterrupted, and seamless and your persuasiveness will be enhanced.