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ADMISSIBILITY OF COMPUTER AND BUSINESS RECORDS - MN Bench Book - Trial Procedures & Practices for Judges
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ADMISSIBILITY OF COMPUTER AND BUSINESS RECORDS

From MN Bench Book - Trial Procedures & Practices for Judges

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-BUSINESS RECORDS GENERALLY

-COMPUTER RECORDS

In Minnesota, the statutory hearsay exception for business records follows the Federal Rules of Evidence, with one primary exception. Generally, records made and kept in the usual course of business are admissible into evidence.[1] The Uniform Business Records as Evidence Act[2] does not change the underlying admissibility of the offered record; it does, however, simplify laying the foundation.[3] Under the Act, as long as a (1) qualified witness can testify to the (2) regularity of the activity and the (3) recording thereof, such that reliability can be established,[4] it is not necessary to call the person who actually made the entry.[5]

Computer records are admissible as a business record,[6] but the foundational requirements are slightly higher:

  1. Qualified witness who can testify to the basic elements of (2), (3), and (4).[7]
  2. Proof of the reliability and accuracy of the computer system. Courts have held that a technical description is not necessary, so long as the witness can give general testimony to the input procedures and routine tests for accuracy.[8] The clear theme is that the trial court has considerable discretion.[9]
  3. Regularity of event.[10]
  4. Regularity of recording.[11]



References:

  1. See e.g. Schoonover v. Prudential Ins. Co. of America, 187 Minn. 343, 245 N.W. 476 (1932).
  2. M.S.A. § 600.01 to § 600.04; § 600.02: “A record of an act, condition, or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.”
  3. “Act was not intended to make admissible evidence which otherwise would be inadmissible.” Brown v. Saint Paul City Ry. Co., 1954, 241 Minn. 15, 26, 62 N.W.2d 688 (1954).
  4. “First, that the evidence was kept in the course of a regularly conducted business activity. Second, that it was the regular practice of that business activity to make the memorandum, report, record, or data compilation. Finally, that the foundation for this evidence is shown by the custodian or other qualified witness.” National Tea Co., Inc. v. Tyler Refrigeration Co., Inc., 339 N.W.2d 59, 61 (Minn.1983).
  5. “[I]t is not necessary that the person who prepared the reports testify to their contents…the phrase “other qualified witness” should be interpreted broadly and the witness need only understand the system involved.” A & L Coating Specialties Corp. v. Meyers Printing Co., 374 N.W.2d 202, 204 (Minn.App.1985); see also City of Fairmont v. Sjostrom, 280 Minn. 87, 92, 157 N.W.2d 849 (1968) (“Purpose of Uniform Business Records as Evidence Act was to make it unnecessary to call as witnesses the parties who made the entries.”).
  6. There is still little case law in existence, and most state statutes have not been amended to add explicit language regarding computer records. However, the existing cases overwhelmingly favor the admission of computer records, see 7 A.L.R.4th 8, and the controlling case is United States v Russo, 480 F2d 1228 (6th Cir. 1973), cert den 414 US 1157, 39 L Ed 2d 109, 94 S Ct 915 (1974), which held that computer records can be admitted as business records, with the provisos listed above. Even though the reliability and use of technology has spread considerably since that holding, the foundational elements have not been changed; the only tailoring in the case law has been to the amount of proof that must be shown regarding the reliability of the computer system, see infra.
  7. See, e.g., Westinghouse Elec. Supply Co. v. B. L. Allen, Inc., 138 Vt. 84, 99, 413 A.2d 122 (1980): “The qualification of the witness and the sufficiency of his testimony are to be determined by the trial court in the exercise of its discretion in light of the sources of information, and the method and time of its preparation.” Courts have generally held sufficient the testimony of a person who was familiar with a computerized business record and the circumstances of its preparation, rather than requiring the testimony of the person who prepared the record, in order to establish a proper foundation for its admission into evidence.
  8. See, e.g., Westinghouse Electric Supply Co. v B. L. Allen, Inc., 138 Vt 84, 99, 413 A2d 122, (1980): (“Even where a foundation witness is unfamiliar with the physical operation of the computerized information storage and computation process, but has a general understanding of the accounting procedures involved and personal familiarity with the account, the admissibility of the printout statement of account should be admitted into evidence unless there are other factors which seriously compromise the trustworthiness of the computer printout,” citations omitted); see also F.D.I.C. v. Carabetta, 55 Conn. App. 384, 396, 739 A.2d 311 (1999) (“It is not necessary to produce as a witness the data entry clerk who actually entered information into computer or the programmer who designed processing program…what is crucial is not the witness's job description, but rather his or her knowledge of basic elements that afford reliability and trustworthiness to computer printouts.”)
  9. See, e.g., Farmers and Mechanics Bank v. Krupa, 52 Conn. App. 493, 495, 727 A.2d 252 (1999): (“Trial courts must have considerable latitude in determining the admissibility of computer generated business records.”)
  10. Standard business records test. See, e.g., Guillermety v. Secretary of Educ. of U.S., 341 F. Supp. 2d 682 (E.D. Mich. 2003) (Defining as “[C]reated by staff in the regular course of their duties at the time of the transaction or event recorded [and] made pursuant to the Department's regular practice of making and keeping such records.”)
  11. Standard business records test. See, e.g., Guillermety v. Secretary of Educ. of U.S., 341 F. Supp. 2d 682 (E.D. Mich. 2003) (Defining as “[C]reated by staff in the regular course of their duties at the time of the transaction or event recorded [and] made pursuant to the Department's regular practice of making and keeping such records.”)