723 F.2d 238 (3d Cir. 1983)
In the Commission’s judgment, the imports of television receivers from Japan, sold at LTFV [less than fair value], have adversely affected the prices of comparable domestically produced receivers in the United States, and have caused substantial loss of sales by U.S. producers. Accordingly, we have unanimously determined that an industry in the United States is being injured by reason of such LTFV imports.
App., vol. 11, at 4198. The trial court held that the Tariff Commission finding of injury was untrustworthy, and thus inadmissible under Rule 803(8)(C), solely because it was predicated upon the Treasury Department’s less-than-fair-value finding. 505 F.Supp. at 1157. Since we have concluded that the court erred in holding the latter untrustworthy and irrelevant, the ruling on the Tariff Commission injury finding is tainted by that error.
The defendants object that the finding of injury was predicated in part on confidential submissions to the Tariff Commission, not disclosed to counsel for the importers. The trial court rejected that objection to admissibility, noting that “the consideration of confidential sources of evidence does not in and of itself render the Commission’s findings inadmissible.” 505 F.Supp. at 1157. We agree with that ruling, essentially for the reasons set forth above with respect to the admissibility, under Rule 803(8)(C), of the less-than-fair-value finding. If the government, in conducting investigations pursuant to authority granted by law, is authorized to rely and does rely on confidential submissions in making a finding, that fact does not so impugn the trustworthiness of the finding as to make it inadmissible. The indice of reliability remains the fact that it is prepared pursuant to a duty imposed by law. The injury finding qualifies for admission under Rule 803(8)(C).
The district court also excluded the finding of injury as irrelevant for two reasons. First, it held that the injury finding could be no more relevant than the less-than-fair-value determination on which it was based. 505 F.Supp. at 1160. Our rejection of the district court’s analysis of the relevance of the less-than-fair-value determination prevents us from affirming on that ground. Second, the district court held that because the injury finding was countrywide, it was not relevant to whether Zenith or NUE had been injured. Id. Essentially for the reasons given in our discussion of the less-than-fair-value determination, we are convinced that the injury finding is plainly relevant on this issue. We therefore conclude that the district court erred in holding that the injury finding is irrelevant.
Finally, the district court excluded the injury finding under Rule 403. Our analysis of the admissibility of the less-than-fair-value finding under this rule is equally applicable here. Since the Rule 403 ruling was colored by erroneous rulings on trustworthiness and relevance, and was premature, we cannot approve the trial court’s exercise of discretion. The Rule 403 issue remains for reconsideration on remand. Since it is not outcome determinative as to any defendant, we need not decide whether the injury finding is properly part of the summary judgment record.
When the Treasury Secretary found sales at less than fair value and the Tariff Commission found injury to an American industry, 19 U.S.C. § 160(a) (1976) mandated a public notice of those determinations, referred to elsewhere in the statute as a finding of dumping. That notice was published at 36 Fed.Reg. 4597 (1971) on March 10, 1971, and is included in the FPS as DSS # 5. App., vol. 11, at 4200. The court concluded that it was a mere ministerial act, adding no weight to the underlying fair-value and injury findings. 505 F.Supp. at 1160. We agree. However, since we have concluded that those findings are admissible under Rule 803(8)(C) and relevant, the finding of dumping is admissible and relevant as well. Admissibility under Rule 403 must likewise be reconsidered in the trial court on remand. Since it is not outcome determinative as to any defendant, we need not decide whether the finding of dumping is properly part of the summary judgment record.
The FPS includes a group of records and reports of proceedings under the Trade Expansion Act of 1962, Pub.L. No. 87-794, tit. I, 76 Stat. 872 (sections repealed 1975), and its successor statute, the Trade Act of 1974, 19 U.S.C. §§ 2101-2487 (1982). One group of proceedings sought relief on behalf of the domestic industry in the form of import quotas or increased duties. Another group involved trade and adjustment assistant proceedings. The trial court held these records and reports to be inadmissible under Rule 803(8)(C) as untrustworthy and under Rule 402 as irrelevant. 505 F.Supp. at 1168-71. They were also excluded under Rule 403. NUE and Zenith do not urge here that those documents should have been considered in ruling on the motion for summary judgment. Thus we do not consider whether they were properly excluded.
NUE and Zenith in the FPS tendered a group of documents originating with the Japanese Fair Trade Commission. One is a Recommendation Decision in a case brought against the Home Electric Appliance Market Stabilization Council, six of whose members1 are defendants in our case, charging illegal price stabilization in Japan. App., vol. 11, at 4685-4720. This case, commenced in 1957, involved an illegal agreement to stabilize the domestic market by establishing high prices and to enforce this agreement among the parties. The other documents were developed in a case brought in 1967 against MEI charging it with illegal efforts to require that its Japanese wholesalers maintain high resale prices. App., vol. 11, at 4541-4684.
Preliminarily to the consideration of admissibility of this group of documents, the trial court reviewed the affidavits of experts on Japanese law who described the Japanese Anti-Monopoly Act and the role of the Japanese Fair Trade Commission in its enforcement. 505 F.Supp. at 1173-76. The Commission is an independent government agency charged with the primary responsibility of enforcing the Anti-Monopoly Act. It is composed of a chairman and five members, and is supported by a staff organized into three divisions, including an investigation division. The staff includes hearing examiners. Proceedings commence with a preliminary investigation, during which, as described by the trial court,
the staff can move from a highly unstructured initial screening process to a slightly less informal one by invoking certain legal processes to obtain information, including compulsory process, spot inspections, the interrogation of witnesses, the taking of statements, and the use of expert testimony.
505 F.Supp. at 1174. At the close of the investigation the staff prepares a report for the Commission setting forth the claimed violation, the investigative process, a synopsis of the facts, applicable legal provisions, and the opinion of the investigator. If the Commission deems a violation likely to have occurred it issues to the respondent a Recommendation, setting forth the facts and law taken from the staff report and proposed measures for eliminating the violation. The respondent may either accept or reject the Recommendation. If it is accepted, the Commission issues a Recommendation Decision, without resorting to a hearing. Id. at 1175. The Recommendation Decision in the case against the Home Electric Appliance Market Stabilization Council was the result of the process described thus far: an investigation, a staff report to the Commission, and a Recommendation accepted by the respondents.
Should a respondent reject the Commission’s Recommendation, the Commission serves a Complaint, making the same allegations as in its Recommendation. The Complaint may result in a hearing conducted before a hearing examiner. At any time before the Commission renders a final decision the respondent may agree to the entry of a Consent Decision in which it admits the findings of fact and application of law in the Complaint and submits a proposed plan containing concrete measures to be taken to eliminate the violation. If no Consent Decision is entered the hearing examiner, following a hearing, submits a report containing a proposed decision which, with the record, is forwarded to the Commission. The Commission reviews the report and the record, and issues its own decision. It may adopt the hearing examiner’s report, remand for further proceedings, or initiate its own hearing. Id. at 1175-76. The documents in the MEI case include a Recommendation which was rejected by MEI, a Complaint which is identical to the Recommendation, a draft decision by a hearing examiner recommending a finding that MEI had violated the Anti-Monopoly Act, a Consent Decision admitting the allegations in the Complaint, a proposal for compliance, and a subsequent report on measures taken pursuant to the Consent Decision. The hearing examiner’s draft report was made after lengthy hearings in which testimony was taken, statements were filed, and exhibits were introduced. Id. at 1177-78.
The trial court held that certain documents connected with the MEI case were not findings within the meaning of Rule 803(8)(C). 505 F.Supp. at 1179. Because certain of these documents were authored by Matsushita rather than by a “public office or agency,” we agree with the trial court that those documents cannot qualify for admission under Rule 803(8)(C). The court held that the remainder of the documents were findings within the meaning of the rule. 505 F.Supp. at 1180. Since this ruling is not challenged on appeal, we will assume that it is correct for purposes of this appeal.
The trial court found that there was a timely investigation by a staff with the requisite skill and experience. Nevertheless the court held that none of the documents qualified for admission under Rule 803(8)(C), because all were untrustworthy. The investigation on which the Recommendation was based was deemed to be “simply too preliminary to be trustworthy within the meaning of 803(8)(C), and that the document relied upon as the distillation of the investigation, because it is accusatory in nature, cannot be deemed a trustworthy finding.” 505 F.Supp. at 1180. The Complaint, in the court’s view, added nothing to the Recommendation because it, too, was accusatory. Even the Consent Decision was deemed untrustworthy because it was based on the staff investigation, not on the facts developed in the hearing before a hearing examiner. Id. at 1181. The hearing examiner’s draft decision in the MEI case was deemed unreliable because it was superseded by the Consent Decision. Id. The court reasoned that because the initial staff investigation did not require a hearing, the staff findings could be revised in later de novo proceedings, and because the report was accusatory, none of the documents could qualify as “factual findings resulting from an investigation made pursuant to authority granted by law.” Fed.R.Evid. 803(8)(C).
Both the Home Electric Appliance Market Stabilization document and the MEI documents involve findings set forth after investigations made by the Japanese Fair Trade Commission staff pursuant to the provisions of the Anti-Monopoly Act. The court’s reliance on the fact that they resulted from accusatory proceedings is misplaced, because Rule 803(8)(C) plainly includes findings in investigatory proceedings, accusatory or otherwise. There is nothing in the record casting any doubt upon the thoroughness of the investigation. Moreover, at least in this case, reliance on the preliminary nature of the investigation is misplaced. In the Home Electric Appliance Market Stabilization case the respondents’ early acquiescence in the Recommendation is strong circumstantial evidence that the investigation was in fact thorough and its finding trustworthy. This acquiescence is clearly sufficient to dispel any doubts which might otherwise exist about trustworthiness based on factors such as the motivation of the investigators, on which the trial court relied. The trustworthiness determination was, therefore, an abuse of discretion.2
In the MEI case the respondent went through a hearing to the stage of a draft recommended decision and at that point agreed to a Consent Decree in the form of the original recommendation. The draft decision was the product of a formal hearing at which the respondent was afforded the right to be represented by counsel, to cross-examine witnesses, and to present a defense. That the recommended decision was superseded by the Consent Decree is irrelevant, since the Consent Decree in no sense rejects the findings in the recommended decision. The recommended decision unquestionably is sufficiently trustworthy for admission under Rule 803(8)(C). The congruence between the Recommendation, the draft recommended decision, and the Consent Decree is strong circumstantial evidence that the staff investigation was thorough.3 There is no contrary evidence. As we noted in Part C. 1 above, there is a presumption that reports of governmental agency investigations are reliable. There is insufficient evidence in this record to overcome that presumption. Thus we conclude that the trial court abused its discretion in holding that the Recommendation, the Complaint, and the Draft of Decision from the MEI case failed to qualify for admission under Rule 803(8)(C).
The Recommendation Decision from the Home Electric Appliance Market Stabilization case contains this finding:
Under the direct influence of the above mentioned discount sales in Nagoya and Tokyo the manufacturers involved who were affiliated with the Radio Industries Association or with the Electrical Manufacturers’ Association prepared the “Nine Points of Implementation” as per Attachment One about early July of the same year for the purpose of promoting maintenance of the so-called list price and of rectifying various conditions which were responsible for the so-called underselling.
App., vol. 11, at 4696-97. The trial court excluded the attachment for lack of authentication.4 513 F.Supp. at 1224. The court also held it to be irrelevant to this case because it did not refer to export matters. Id. at 1225. Authenticity is in our view established by the quoted finding which is itself admissible. See Part V E 1 infra. The attachment is not offered for the truth of the matters asserted therein, but for the fact that, as the report of the investigation found, it was prepared by the manufacturers for the purpose of price maintenance. As such it is a part of the finding and admissible under Rule 803(8)(C). Its relevancy depends on its tendency to support the NUE-Zenith conspiracy theory.
The trial court considered as alternative grounds for excluding the Japanese Fair Trade Commission documents in evidence Fed.R.Evid. 408, prohibiting the use of offers in compromise to prove liability, Fed.R. Evid. 410(2), prohibiting use of nolo contendere pleas to prove liability, and the proviso to section 5(a) of the Clayton Act, 15 U.S.C. § 16(a) (1982), excluding consent judgments from the collateral estoppel effect of final judgments in federal government civil or criminal antitrust cases. 505 F.Supp. at 1181-84.
The trial court rejected the contention that section 5(a) of the Clayton Act applied. 505 F.Supp. at 1183 n. 67. We agree. Section 5(a) makes final judgments in favor of the United States under the antitrust laws of the United States prima facie evidence against the defendant in subsequent actions. The proviso to the section excludes consent decrees entered into before any testimony has been taken. Neither the section nor its proviso has any application to reports of an investigation made pursuant to the laws of Japan.
The trial court did rely on Rule 410, which provides that plea offers are not, “in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions.” Fed.R.Evid. 410; see 505 F.Supp. at 1181-84. By its terms Rule 410 deals only with pleas and plea negotiations in criminal cases. There is nothing in the Advisory Committee Note or the Congressional Reports on the Evidence Rules indicating that Rule 410 was intended to apply to civil consent decrees. Thus the trial court erred in relying on that rule to exclude the findings in the recommended decision.
The trial court also appears to have relied on Rule 408 which provides that compromises or offers of compromise are “not admissible to prove liability for or invalidity of the claim or its amount.” Fed.R.Evid. 408; see 505 F.Supp. at 1181-83. What is offered, however, is not the compromise with the Japanese Fair Trade Commission, but the findings in its investigation. It would be entirely proper, if the case is tried to a jury, to exclude from its attention or consideration the facts of entry into the Consent Decree and of acquiescence in the Recommended Decision. Thus the ultimate fact finder can consider the findings resulting from an investigation without making use of the Consent Decree to prove liability.
A more difficult question is presented, however, by our observations, supra, with respect to trustworthiness. We noted there that the fact of consent or acquiescence supports the inference that the investigation was thorough and its findings trustworthy. In making the trustworthiness determination the trial court is not limited to admissible evidence.5 Fed.R.Evid. 104(a). Thus the fact that consent or acquiescence is inadmissible because of Rule 408 is not dispositive. Moreover Rule 408 is not a privilege, for by its terms it “does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” As the Notes of the Advisory Committee explain:
The final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule.
Entirely apart from Rule 104(a), therefore, consideration of the fact of compromise or acquiescence not as an admission of liability, but only for the purpose of determining the trustworthiness of findings made in an investigation conducted pursuant to authority granted pursuant to law, does not fall within Rule 408. The trial court erred, therefore, in relying on that rule to exclude the findings of the Japanese Fair Trade Commission.
The court reserved ruling on relevancy of the Japanese Fair Trade Commission documents until its discussion of the summary judgment motion. We do likewise. But for purposes of that motion we deem those documents admissible under Rule 803(8)(C) to the extent that they contain the reports of investigations conducted pursuant to law.
NUE and Zenith contended in the trial court that the findings of fact made by Judge Higginbotham in ruling on the defendants’ motions to dismiss for lack of personal jurisdiction, improper venue, and insufficient service of process were admissible under Rule 803(8)(C). The court rejected that contention. 505 F.Supp. at 1184-86. It is not renewed in this court. We will not consider those findings in determining whether summary judgment was proper.
D. Rule 702 Expert Opinion Evidence
A substantial part of the NUE-Zenith case set out in the FPS consisted of an offer of proof as to the testimony to be given by expert witnesses. These offers were made in the form of five expert reports: (1) Economic Study of the Japanese Television Industry, by Dr. Horace J. DePodwin and others of Horace J. DePodwin Associates, Inc., an economic consulting firm (the De-Podwin Report, App., vol. 5, at 1583); (2) The Pervasive Use of Collusive and Company Group (Keiretsu) Activities in Achieving the Rapid Increase in Japanese Exports of Television Receivers to the United States, by Professor Kozo Yamamura, Chairman, Japan Studies Program and Professor of Economics and East Asian Studies at the University of Washington (the Yamamura Report, App., vol. 7, at 2661); (3) Economic Analysis of Evidence Relating to Japanese Electronic Products Antitrust Litigation, by Stanley Nehmer of Economic Consulting Services, Inc. (the Nehmer Report, App., vol. 6, at 2239); (4) The Impact of Japanese Financial and Employment Practices on Japanese Production, Marketing and Price Behavior, by Professor Gary R. Saxonhouse, Professor of Economics, University of Michigan (the Saxonhouse Report, App., vol. 7, at 2887); and (5) Vertical Restraints by Japanese Television Manufacturers: Anti-competitive Effects, by Professor John Owen Haley, Associate Professor of Law, University of Washington (the Haley Report, App., vol. 7, at 2921). In its ruling on the admissibility of opinions contained in these reports or of live testimony expressing the opinions contained therein, the trial court focused upon two separate issues: first, whether the opinions complied with the reasonable reliance requirement of Rule 703; and, second, whether they complied with the specialized knowledge and helpfulness requirements of Rule 702.
First, the trial court noted that under Rule 703 the facts or data on which an expert bases an opinion need not be admissible “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Fed.R.Evid. 703. The court held that it must make a factual determination under Rule 104(a) as to whether experts in the field rely on the type of data relied upon. Such a determination must be made when there is a factual dispute over such reliance. The court held, however, that in making this determination “[w]e do not consider the affidavits submitted by plaintiffs’ experts to the effect that the material upon which they relied in forming their opinions is of a type generally relied upon by experts in their respective fields as in any way determinative of the issue.” 505 F.Supp. at 1325-26. The proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be. See, e.g., Wilder Enterprises v. Allied Artists Pictures, 632 F.2d 1135, 1143-44 (4th Cir.1980); Bauman v. Centex Corp., 611 F.2d 1115, 1120 (5th Cir.1980); United States v. Genser, 582 F.2d 292, 298 (3d Cir.1978), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979). There are in the record unequivocal and uncontradicted affidavits from each of the experts that the data they relied on in forming their opinions were of a type reasonably relied upon by experts in their respective fields. Thus the court’s ruling was that these affidavits, the only record evidence bearing on the reliance issue, would be disregarded. Instead the court developed its own set of standards for determining reasonable reliance, including:
The extent to which the opinion is pervaded or dominated by reliance on materials judicially determined to be inadmissible, on grounds of either relevance or trustworthiness;
The extent to which the opinion is dominated or pervaded by reliance upon other untrustworthy materials;
The extent to which the expert’s assumptions have been shown to be unsupported, speculative, or demonstrably incorrect;
The extent to which the materials on which the expert relied are within his immediate sphere of expertise, are of a kind customarily relied upon by experts in his field in forming opinions or inferences on that subject, and are not used only for litigation purposes;
The extent to which the expert acknowledges the questionable reliability of the underlying information, thus indicating that he has taken that factor into consideration in forming his opinion;
The extent to which reliance on certain materials, even if otherwise reasonable, may be unreasonable in the peculiar circumstances of the case.
505 F.Supp. at 1330 (footnote omitted).
In substituting its own opinion as to what constitutes reasonable reliance for that of the experts in the relevant fields the trial court misinterpreted Rule 703. The court’s approach involved fundamental legal error because, as a matter of law, the district court must make a factual inquiry and finding as to what data experts in the field find reliable. There is no discretion to forbear from making this inquiry and finding. Insofar as the district court substituted its own views of reasonable reliance for those of the experts, therefore, we review for legal error.6
The indice of reliability under Rule 703 is the fact that experts in the field in question rely on the type of data in forming their opinions. As Professor McCormick observed years ago:
It is reasonable to assume that an expert in a science is competent to judge the reliability of statements made to him by other investigators or technicians. He is just as competent indeed to do this as a judge and jury are to pass upon the credibility of an ordinary witness on the stand. If the statements, then, are attested by the expert as the basis for a judgment upon which he would act in the practice of his profession, it seems that they should ordinarily be a sufficient basis even standing alone for his direct expression of professional opinion on the stand
C. McCormick, Evidence § 15, at 35-36 (2d ed. 1972) (footnote omitted). It was this view which the drafters incorporated in Rule 703. They did so over significant opposition.7 What the trial court did in effect was to reject the decision of the Judicial Conference, the Supreme Court, and Congress and adhere to an unusually restrictive view as to the basis on which an expert’s opinion may be laid. This court has recognized that the rule “broadens and liberalizes the basis for expert opinions” by focusing on what experts in the field deem reliable. Seese v. Volkswagenwerk A.G., 648 F.2d 833, 844 (3d Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981). The trial court’s interpretation of the rule has in this respect been criticized by the leading commentator on the federal evidence rules. 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 703[03], at 703-17-22 (1982).
We do not disagree with the trial court’s observation that “the assumptions which form the basis for the expert’s opinion, as well as the conclusions drawn therefrom, are subject to rigorous examination.” 505 F.Supp. at 1328. But once the court finds that the data relied on is such as experts in the field reasonably rely upon, the rigorous examination should be conducted in the cross-examination for which Rule 705 makes explicit provision.8 In that setting the fact-finder can be expected to determine the appropriate weight to be given to the testimony.9 We hold, therefore, that on this record the trial court erred in excluding expert opinion evidence on the ground that it was based on materials not reasonably relied upon. Thus we will disregard such rulings in determining what evidence to consider for purposes of summary judgment. The defendants urge that expert opinion testimony cannot be considered for that purpose, but the law in this circuit is clearly otherwise. Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.1975).
The second issue on which the trial court focused in considering the admissibility of the tendered expert opinion evidence was the interrelationship between Rules 702 and 704. 505 F.Supp. at 1330. The former provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Fed.R.Evid. 702. The latter provides:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Fed.R.Evid. 704. Rule 704 settles, for the federal courts, the old dispute over whether expressions of expert opinion on the ultimate facts in issue somehow invade the province of the jury. They do not. Such expressions, if they will assist the trier of fact, are admissible. The court’s role is to make the determination whether the proffered testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Undoubtedly the court is clothed by Rule 702 with some degree of discretion in determining whether the opinion will be helpful, and we normally review only for abuse of that discretion. Knight v. Otis Elevator Co., 596 F.2d 84, 87 (3d Cir. 1979). But that review must be more discriminating if we believe that the court’s exercise of discretion proceeded under a misapprehension as to the meaning of the governing rules. The court’s misinterpretation of the reasonable reliance requirement of Rule 703 is in this respect significant.
After reviewing the caselaw, much of it antedating the Federal Rules of Evidence, the trial court interpreted Rule 702 as embodying several basic principles governing the issue of assistance. First, “expert opinion must be approached on an expert by expert, or even opinion-by-opinion, basis.” Second, “the court may — indeed must— carefully scrutinize the underlying assumptions, inferences drawn, and conclusions reached by the experts before reaching a decision on admissibility ... .” Third, “opinions do not assist the jury when they are cumulative of evidence already before the jury, or when the expert has sifted through that evidence reaching a conclusion which in essence attempts to tell the jury how it should decide the case.” Finally, “the expert must utilize specialized knowledge, not ordinarily possessed by the layman, to reach an opinion which truly aids the jury.” 505 F.Supp. at 1333-34.
There are several serious problems with the trial court’s formulation of standards for determining admissibility under Rule 702. First, the requirement for admissibility that expert testimony be “beyond the jury’s sphere of knowledge” adopts a formulation which was rejected by the drafters of Rule 702. While that formulation applied prior to the adoption of evidence rules, it no longer applies.
Such a test is incompatible with the standard of helpfulness expressed in Rule 702. First, it assumes wrongly that there is a bright line separating issues within the comprehension of jurors from those that are not. Secondly, even when jurors are well equipped to make judgments on the basis of their common knowledge and experience, experts may have specialized knowledge to bring to bear on the same issue which would be helpful.
3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[02], at 702-9-10 (1982) (footnotes omitted). Moreover the suggestion that the court must, in deciding on admissibility, carefully scrutinize the underlying assumptions, the inferences drawn, and the conclusions reached, if followed rigorously, would result in the trial court, as distinguished from the fact-finder, deciding the weight to be given to the testimony:
[D]oubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions. The jury is intelligent enough, aided by counsel, to ignore what is unhelpful in its deliberations.
Id. ¶ 702[03], at 702-14-15 (footnotes omitted). The objection that an expert should not be permitted to sift through the evidence in reaching a conclusion is inconsistent with the language of Rule 703 permitting expert testimony based on “facts or data ... made known to him at ... the hearing,” language which codifies the longstanding practice of the courts. Whether the experts used specialized knowledge in reaching their opinions presents a question of fact, which we review by the clearly erroneous standard. The question whether such an opinion will be helpful to the jury involves discretion, but that discretion must be exercised consistent with the presumption that expert testimony will be helpful. Finally, to the extent that the trial court’s discussion suggests that expressions of opinion on the ultimate fact in issue somehow impermissibly invade the province of the jury, 505 F.Supp. at 1334, it is inconsistent with the clear mandate of Rule 704.
The trial court’s general approach to admissibility of expert opinion evidence seems inconsistent with the case law in this circuit favoring admissibility under Rule 702. See, e.g., United States v. Hill, 655 F.2d 512, 514-16 (3d Cir.1981) (when entrapment is an issue psychiatrist can express opinion on susceptibility to persuasion); Seese v. Volkswagenwerk A.G., 648 F.2d 833, 844-45 (3d Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981) (engineer can testify that had window retaining system been installed in van plaintiffs would not have been injured); Knight v. Otis Elevator Co., 596 F.2d 84, 86-88 (3d Cir.1979) (factfinder, not trial court, determines credibility of expert’s opinion on design defect). We turn, therefore, to the proffered expert opinions.
The three volume DePodwin Report is described by the trial court as “by far the most careful, scholarly, and disinterested of the reports submitted by the plaintiffs’ expert witnesses.” 505 F.Supp. at 1334 (footnote omitted). The critical materials are in Volume I, consisting of eleven parts and a conclusion.10 Part I is an outline of the economic analysis. Part II contains background on television manufacturing in the United States and Japan. Part III describes the Japanese television industry, with statistical information on concentration, construction and export data, production capacity, investment, and facilities expansion for the industry as a whole and for individual defendants. With one limited exception the court assumed that these parts were admissible under Rule 702. 505 F.Supp. at 1336-37. The court also assumed admissibility of Part VII describing the nature of the market for television receivers in Japan as conducive to cartel arrangements. Id. at 1363. It did not address Parts VIII through XI dealing with issues of damage and injury. Part IV, in which the experts opine that there was a Japanese television industry cartel, and Part V, in which they describe the operation of that cartel, were entirely excluded. Part VI, a comparison of prices of Japanese television receivers in the United States and in Japan, was also excluded.
a. Parts IV & V
Exclusion of Parts IV and V was predicated on two grounds: that the expert relied on materials which did not satisfy the reliability requirement of Rule 703; and that the expert’s conclusions as to the existence of a conspiracy are impermissible expert testimony under Rule 702 because they would not be helpful to the factfinder. The first ground need not long detain us. In this Part V D we have already held that the trial judge misapplied Rule 703 in concluding that he, not the experts in the field, was the source of information about reasonable reliance. Thus we examine Parts IV and V of the DePodwin Report only to determine whether testimony such as is there proposed displayed specialized knowledge, or would be helpful to the trier of fact.
The trial court found that DePodwin did not use economic expertise in reaching the opinion that the defendants participated in a Japanese television cartel. 505 F.Supp. at 1342-46. We have examined the excluded portions of Parts IV and V in light of the admitted portions, and we conclude that this finding is clearly erroneous. As a result, the court also held the opinions to be unhelpful to the factfinder. What the court in effect did was to eliminate all parts of the report in which the expert economist, after describing the conditions in the respective markets, the opportunities for collusion, the evidence pointing to collusion, the terms of certain undisputed agreements, and the market behavior, expressed the opinion that there was concert of action consistent with plaintiffs’ conspiracy theory. Considering the complexity of the economic issues involved, it simply cannot be said that such an opinion would not help the trier of fact to understand the evidence or determine that fact in issue. Characterizing the expert as an “oath-help[er],” or a “conspiracyologist,” see, e.g., 505 F.Supp. at 1343, 1352, 1367, 1369, is no substitute for recognition of the rule of law embodied in Rule 702. Exclusion under that rule of an opinion clearly based on expert judgment as unhelpful to the factfinder was an abuse of discretion.
b. Part VI
The court also excluded Part VI of the DePodwin Report, entitled “Japanese Television Prices in Japan and the United States.” 505 F.Supp. at 1352-59. This part of the report purports to compare defendants’ prices in the Japanese domestic market with their prices in the United States market. In deciding the motion for summary judgment, however, the court noted:
We ruled most of these [price comparison] materials inadmissible in our Expert Testimony Opinion. However, because of their pivotal role in plaintiffs’ case, we shall assume arguendo their admissibility and thereupon consider them.
513 F.Supp. at 1235-36 (footnote omitted). Because of our disposition of the case we cannot assume admissibility arguendo, but must address defendants’ objections to admissibility.
The report makes three comparative analyses of the prices charged by defendants in domestic sales in Japan and in export sales. The first sets forth a comparison of average domestic sales and export sales by screen size categories for each defendant. The calculations of average prices are made in a report by the accounting firm of Morris R. Cohen & Co., which is in evidence without objection. This report calculated average prices from list prices furnished by the defendants in answers to interrogatories. The second price analysis compares prices of domestic models and export models found by Zenith’s engineers to be technically comparable. List prices for such models were derived from the Cohen report, but the DePodwin organization also used wholesale prices which the Japanese defendants had submitted to the Japanese Ministry of Finance when they filed commodities-tax returns. The third analysis used figures for average prices by screen size developed in the Morris R. Cohen & Co. report, but adjusted those prices by the adjustments to prices which are specified in the Antidumping Act of 1916. From the three methodologies DePodwin drew the same general conclusion: that “these companies engaged in pervasive and systematic price discrimination over many years.” App., vol. 5, at 1861. “Moreover,” DePodwin concluded, “the magnitude of the differences in Japanese domestic and export prices was very often so substantial as to indicate that a serious distortion in the relationship between supply and demand in the United States market must necessarily have resulted from this discriminatory policy of the Japanese television cartel.” Id. at 1865.
The trial court ruled that the first and third analyses, both of which used average screen size prices developed by Morris R. Cohen & Co., which were already in evidence, were inadmissible because these average price calculations were not the type of comparison on which an economist would reasonably rely. The analyses did not, for example, separately calculate average prices of monochrome and color receivers, 505 F.Supp. at 1353-54. The second analysis, using sets found by Zenith’s engineers to be comparable, was held to be inadmissible under the reasonable reliance requirement of Rule 703 because the economist relied on list prices furnished by the defendants in answers to interrogatories, without taking into account defendants’ rebate structures. Id. at 1355.
In making these exclusionary rulings the trial judge made the same fundamental legal error which we noted earlier: he assumed that the determining factor under Rule 703 was his view of what data experts in a field ought to rely upon rather than making a factual inquiry and a finding as to what data experts, in this case economists, deem reliable. Moreover in the report, which is, after all, an offer of proof, Dr. DePodwin explains:
The differences in average domestic and export prices for each manufacturer ... may to some extent reflect differences in the mix of models within each screen size category sold domestically and exported. The fundamental differences in price for comparable models sold in Japan and exported to the United States are so large and consistent that any effect of differences in the mix of models cannot be significant.
App., vol. 5, at 1818. There is no record evidence suggesting that economists would not, given the range of differences observed, rely on average prices rather than actual model-by-model price comparisons. Thus the ruling excluding Part VI of the DePodwin report on the authority of Rule 703 also was error.
The trial court also excluded the first and third sets of comparisons under Rule 702. The court found that price comparisons calculated in such gross terms “[take] no account of highly significant variations among models” and thus held that these comparisons cannot “be helpful to the trier of fact.” 505 F.Supp. at 1354. However, the court’s finding that the “highly significant variations” impugn the probative value of the price comparisons is contradicted by the record. DePodwin explained that “[t]he fundamental differences in price for comparable models sold in Japan and exported to the United States are so large and consistent that any effect of differences in the mix of models cannot be significant.” App., vol. 5, at 1818. In light of this expert evidence, we hold that the trial court’s helpfulness determination is not consistent with the sound exercise of its discretion.
The trial court also excluded Appendix B to Part VI. Appendix B is a mathematical cost construction offered to show that four defendants — MEI, MELCO, Hitachi, and Sanyo — sold television receivers in the United States at prices below cost while earning substantial profits in Japan. The trial court held that Appendix B was inadmissible under Rule 703 because it is “pervaded by reliance on untrustworthy sources of information: false or unsupported assumptions, and average prices calculated in gross terms.” 505 F.Supp. at 1363. In so ruling, the trial court ignored DePodwin’s uncontradicted affidavit that all data relied on in his report were of the type on which experts in his field would reasonably rely. Instead, the court substituted its own opinion of what constitutes reasonable reliance. As we have held above, exclusion of expert evidence on the basis of this misinterpretation of Rule 703 is error.
c. Part VII
Although the trial court admitted most of Part VII of the DePodwin Report, it excluded several pages that are based solely on what is assumed to be a scholarly Japanese language article. 505 F.Supp. at 1364. The court held that because the opinions contained in these pages are based on material that has not been shown to be independently admissible under Fed.R.Evid. 803(18),11 they may not qualify as expert opinions under Rule 702. The court assumed that the article relied on was the type of data on which experts in the field reasonably rely. Thus, the article itself need not be admissible in order for the opinions that DePodwin draws from it to qualify as admissible expert opinions. To the extent that the trial court ruled otherwise, it erred.
We will, therefore, in deciding whether summary judgment was proper, consider Parts I through VII of the DePodwin Report.
The Yamamura Report is by an economist specializing in the Japanese economy. The trial court ruled that the first seventy-three pages detailing background information on the relationship between Japanese industry and government were admissible under Rule 702. 505 F.Supp. at 1366. The balance of the report was excluded essentially for the same reasons that most of the DePodwin Report was excluded. For the reasons set forth in our discussion of that report, exclusion on such grounds was improper.
In addition the court took exception to the fact that the report quotes from a Japanese language journal, which the court assumed to be a scholarly article by a group of economists. The court held that this quoted material must be excluded because its admissibility was not independently established under Rule 803(18). 505 F.Supp. 1368. The court apparently assumed that Yamamura could reasonably rely on the quoted material as a basis for his own opinions, but found that he did more than rely on the quoted material; he adopted the opinions expressed therein as his own. This, the court held, was impermissible.
To the extent that Yamamura used his expertise to evaluate and credit the opinions contained in the quoted material, the court, for purposes of summary judgment, should have considered the credited materials as reflecting Yamamura’s own expert opinion. Nothing in Rule 803(18) suggests otherwise. We note that for purposes of summary judgment, only the content of Yamamura’s opinion and not its form is relevant. How the article is to be handled in the event that Dr. Yamamura testifies is a matter we need not now decide. But certainly the reference in his report to what he apparently viewed as a learned treatise is no reason for ruling that he cannot express an opinion consistent with it.
We will, therefore, consider the Yamamura Report in deciding whether summary judgment should have been granted.
The Nehmer Report, relying on materials from published sources and on materials obtained during discovery, makes an economic analysis which suggests that in the Japanese market there were barriers to entry by American firms, collusive efforts to stabilize domestic prices, concert of action with respect to sales at low prices in the United States, and additions to capacity far in excess of the needs of the Japanese domestic market. The most significant parts of the Nehmer Report were ruled inadmissible essentially for the same reason that most of the DePodwin report was excluded.12 505 F.Supp. at 1369-76. The ruling suffers from the same defects.
We will, therefore, consider the entire Nehmer Report in deciding whether summary judgment should have been granted.
The Saxonhouse Report, relying on economic information which was not seriously challenged as unreliable, posits that Japanese firms in general and Japanese electrical equipment manufacturers in particular have higher fixed costs than do similar American firms. These higher fixed costs are the result of differences in the labor market and differences in financing practices. These higher fixed costs, the report concludes, create a climate in which vigorous price competition is unlikely and collusion to avoid it is desirable. The Report also concludes that it creates a climate in which dumping abroad is necessary in order to absorb excess capacity. Finally, the Saxonhouse Report finds that collusive price stabilization in the home market enables Japanese firms to support sustained sales at low prices in the export market.
The trial court noted relevancy objections, 505 F.Supp. at 1377, but postponed ruling on them. Instead it ruled, without extended discussion, that the opinions expressed in the Saxonhouse Report were inadmissible, because “[n]either Rule 703, which excludes opinions based upon unreliable assumptions, nor Rule 702, which excludes opinion testimony not helpful to the trier of fact, condones the admission of such circular expert testimony.” 505 F.Supp. at 1378. Even on the doubtful assumption that this conclusory statement qualifies as a finding that Dr. Saxonhouse relied, in forming his opinion as to the likelihood of collusion, on materials on which economists do not rely, it would be based on the erroneous interpretation of Rule 703 noted earlier. Thus as a Rule 703 ruling it is improper.
The trial court also excluded the Saxon-house Report as not helpful under Rule 702 because it explicitly assumed a collusive decision by the defendants. 505 F.Supp. at 1378. The Report does assume that “a calculated collusive decision has been made by Japanese radio and television manufacturers to take a continually increasing share of the American market for their products . ... ” App., vol. 7, at 2893-94. The Report does not appear to rely on this assumption to reach its conclusion that conditions in the Japanese home market make collusion highly likely. Rather it relies upon the presence in that market of high fixed costs, high debt-equity ratios, and a social environment of low labor turnover, id. at 2889-90, all of which suggest a desire and motivation to collude in the manner alleged by NUE and Zenith. Insofar as the Saxon-house Report assumes collusion, it does so to demonstrate that the assumed collusion would lead to price differentials between the American and Japanese markets. There is record evidence of such differentials. Saxonhouse’s opinion would unquestionably be helpful to the trier of fact in understanding the reason for those differentials. Exclusion under Rule 702 was inconsistent with the sound exercise of discretion. Neither Rule 703 nor Rule 702 justifies exclusion.
Because the trial court did not make a Rule 403 determination and the defendants have not urged exclusion under Rule 403 before this court, we have no occasion to consider whether exclusion of the Saxon-house Report under that rule would be an abuse of discretion. We will therefore consider it as part of the summary judgment record.
The Haley Report opines that in the relevant time period the defendants had the capacity effectively to police a price-fixing agreement related to sales of television receivers in Japan as a result of govern-mentally imposed barriers to entry by foreign manufacturers, the practice of major Japanese manufacturers marketing through manufacturer-controlled wholesale and retail outlets which thus could be supervised, and the use of the actual control over distribution to fix and maintain retail prices. The report is by a law professor specializing in Japanese antitrust law. The court held that Professor Haley’s descriptions of Japanese barriers to entry and of the distribution arrangements of major manufacturers were admissible. His opinion that there was horizontal concert of action in price fixing in Japan was excluded on two grounds. First the court held that because the opinion was based in part on the Japanese Fair Trade Commission documents, which the trial court had excluded, it did not meet the reasonable reliance requirement of Rule 703. 505 F.Supp. at 1379. We have held above that the court misinterpreted Rule 703 by substituting its own view for that of experts in the field. Second, the court held that Haley’s conclusion that there was horizontal concert of action among defendants in pricing practices in Japan did not follow from the materials on which he relied. Id.
We do not believe, however, that the court’s disagreement with the expert’s opinion is a proper ground for excluding evidence. In any event we have reviewed the Haley Report and conclude that the opinion that there was horizontal concert of action is logically related to the materials on which he relies, some of which we have held to be independently admissible. Thus the trial court’s rulings excluding the report were improper.
Because the trial court did not make a Rule 403 determination and defendants have not urged exclusion under Rule 403 before this court we have no occasion to consider whether exclusion under Rule 403 would be an abuse of discretion. The Haley Report will, therefore, be considered as part of the summary judgment record.
E. Rule 803(6) Materials
NUE and Zenith included in the FPS a number of documents seized by the Japanese Fair Trade Commission from the offices of the defendants in the course of its market stabilization investigation, additional materials produced in discovery from the defendants’ files, relating to activities of the defendants in Japan, and materials obtained in discovery from defendants and American purchasers respecting certain import transactions. NUE and Zenith contend that all of these documents are admissible under Rule 803(6) as records of regularly conducted business activity. They also contend that many of them are admissible under the residual hearsay exception in Rule 803(24) or, in instances where the witnesses are unavailable, under Rules 804(b)(3) and (5). The defendants objected to almost all of these documents on grounds of authenticity, and because they did not qualify as records of regularly conducted business activity.
Rule 901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). This standard is the same as that for the admission of conditionally relevant evidence under Rule 104(b). It differs from the general standard for admissibility expressed in Rule 104(a) which requires that the court make findings on preliminary questions. All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what its proponent claims it to be. I believe that under Rule 901(a) this prima facie standard for authentication is a legal one, as to which our review is plenary. Chief Judge Seitz and Judge Meskill believe that we review Rule 901 determinations by the abuse of discretion standard. See United States v. Clifford, 704 F.2d 86, 91 (3d Cir.1983). On the record presented here any difference in scope of review is not dispositive.
The trial court held, and we agree, that the evidence required to establish a prima facie case that the evidence is what the proponent claims it to be must itself be admissible. This contrasts with Rule 104(a) rulings, which may be based on inadmissible evidence. The difference lies in the fact that if authenticity is disputed the dispute must be resolved by the jury or other fact-finder. 5 J. Weinstein & M. Berger, Weinstein’s Evidence 1901(a)[01], at 901-16 (1983). We note that the court, citing United States v. Goichman, 547 F.2d 778, 784 (3d Cir.1976), referred to the necessity for “substantial” admissible evidence. 505 F.Supp. at 1219-20. The reference to “substantial” evidence in Goichman, however, as the context discloses, was not intended to require anything more than a prima facie showing that the evidence is what its proponent claims it to be. We do not understand the trial court to have imposed any stricter standard.
In one respect, however, we disapprove of the trial court’s approach to authentication. The court observed:
As a corollary to this holding [that admissible evidence is required], we acknowledge that some documents may be authenticated only as against certain parties, since the authenticating evidence for those documents may be admissible only against certain parties.
505 F.Supp. at 1220 n. 19. This ruling confuses questions of authenticity — that the evidence is what its proponent claims it to be — with questions of admissibility. The rules governing admissibility are aimed at preventing use against a party of materials that are as to it untrustworthy. Thus as to each party evidence must have some independent basis of admissibility. Less is required in establishing that evidence is what its proponent claims it to be. For example, if one party in an answer to interrogatories states that a given document is a record kept in the course of its regularly conducted business activity, that answer suffices to authenticate it, even though for other purposes the answers to interrogatories of one party may not be admissible against another. The evidence which suffices to establish authenticity should be evidence that is relevant on the limited question of genuineness: that is, evidence admissible against the party having such a relationship to the proffered materials that it is likely to know the facts as to genuineness. Once a prima facie case of genuineness against that party is established, the court should regard the materials as sufficiently authenticated against all parties, subject, of course, to the right of any party to offer evidence to the ultimate fact-finder disputing authenticity. The other parties are adequately protected, with respect to trustworthiness, by the requirement that the court must still rule on admissibility.
The trial court ruled that six sets of materials proffered under Rule 803(6) were authenticated as to all defendants: the Yajima Diaries, DSS 48-50, 505 F.Supp. at 1267-70; the Yamada Diary, DSS 51, 505 F.Supp. at 1277-79; the Yamamoto Diaries, DSS 52-54, 505 F.Supp. at 1280-82; the Shimizu Memorandum, DSS 95, 505 F.Supp. at 1297-98; the Toshiba Memoranda, DSS 96-98, 505 F.Supp. at 1299-1300; and the TV Export Council Meetings documents, DSS 1030-1034, 505 F.Supp. at 1310-12. The trial court also held to be prima facie authentic against all defendants two sets of materials offered as prior testimony under Rule 804(b)(1): testimony of seventeen witnesses before hearing examiners of the Japanese Fair Trade Commission in the market stabilization case, DSS 58-74, 505 F.Supp. at 1286-88; and protocols, or records of statements given to the same commission by officers of several defendants, DDS 75-92, 505 F.Supp. at 1294-96. These findings are not challenged on appeal.
One exhibit, the Okuma Diary, DSS 55, was held to be authenticated only against MELCO. 505 F.Supp. at 1283-84. The diary was identified in MELCO’s supplemental answers to interrogatories as that of its assistant to the manager of the Consumer Products Sales Department. It is mentioned by Okura in his protocol to the Japanese Fair Trade Commission as having been written in relevant part at a meeting of the Tenth Day Group. Okura also testified in the Commission proceedings that he attended the meeting. The diary was lawfully seized by the Commission at MELCO’s premises. The protocol was admitted against MELCO, 505 F.Supp. at 1294-97, and the relevant testimony was admitted against all six defendants in the market stabilization case. 505 F.Supp. at 1293. The court ruled similarly with respect to the Tokizane Diary, DSS 56-57, holding that it was authenticated only against MEI. Id. at 1285-86. Mr. Tokizane was director of MEI’s television division. The diary was an exhibit in the market stabilization case and is referred to in MEI’s answers to interrogatories. Because there was sufficient evidence admissible against MELCO and MEI, respectively, to authenticate the two diaries, we hold that the evidence referred to suffices to support a finding, against all defendants, that the Okura and Tokizane diaries are authentic.
Two sets of Rule 803(6) materials were held to be unauthenticated. The first set is offered as minutes of the meetings of officers of the Electronic Industries Association of Japan. DSS 1027 refers to a meeting of February 16, 1963. DSS 1028 refers to a January 18, 1964 meeting. Both are typewritten but unsigned. The documents were obtained during the course of this litigation from the Association at its office in Japan. Various defendants in answers to interrogatories refer to the meetings of the officers taking place on these dates. The documents were produced in compliance with a direction by Judge Higginbotham that the defendants, who are directors of the Association, make a good faith effort to have the Association’s records made available to NUE and Zenith. Counsel for MEL-CO was present when such production took place. The two exhibits were removed from a stack of similar minutes of meetings held monthly. We hold that from the totality of these circumstances a finding could be made that exhibits DSS 1027 and 1028 are what NUE and Zenith claim them to be: namely, minutes of the monthly meetings of the Electronic Industries Association of Japan. They have the appearance, content and substance typical of minutes. Fed. R.Evid. 901(b)(4). They were produced by the defendants pursuant to a discovery order in this proceeding. Fed.R.Evid. 901(b)(10). They come from a source where such minutes were likely to be kept, and the Association was a body which was likely to prepare such minutes. No more evidence was needed to establish a prima facie case of authenticity than the record contains.
The second Rule 803(6) document rejected as unauthenticated, 505 F.Supp. at 1303-08, is DSS 1029, an internal memorandum from the files of Japan Victor Company, not a party to this litigation, but a member of the Statistical Committee of the Electronic Industries Association of Japan. Although separately operated, Japan Victor is fifty-one percent owned by MEI. The memorandum refers to a December 26,1966 meeting of the Statistics Committee of the Electronic Industries Association of Japan, and suggests that at that meeting the members of the committee agreed to modify their accounting practices so as to conceal from government agencies the extent of the disparity between export and domestic prices. The document, dated January 6, 1966, was produced from the files of Japan Victor Company pursuant to a subpoena accepted by MEI’s counsel on behalf of Japan Victor, at Japan Victor’s office in Tokyo. MEI’s counsel was present when it was produced. According to the translation, which is not disputed, it is addressed to the Chief, Plant Accountants’ Section, and is from Sales Promotion. Two “chops” or signatures appear on it: those of Mr. Shiokawa and Mr. Oguri. The defendants admit that both are employed by Japan Victor. Answers to interrogatories by several defendants establish that Japan Victor is a member of the Statistics Committee, that a meeting of that committee took place on December 26, 1966, that Mr. Oguri was Japan Victor’s representative at meetings of the Statistics Committee, and that there had been a discussion at that meeting of the general subject matter set forth in the memorandum. App., vol. 4, at 1438. The handwritten memorandum is on stationery bearing a Japan Victor Company Ltd. legend and is dated eleven days after the meeting it purports to describe. The trial court held that this document was not authenticated because “[w]e have no notion of who wrote the document, or where, or on what basis.” 505 F.Supp. at 1306. The court noted that “while the plaintiffs might have taken the deposition of someone from Japan Victor when their counsel was in Tokyo to receive production of the document and thus shed some light on its origin and its genuineness, they elected not to do so.” Id.
The evidence, however, indicates that there was a meeting of the Statistical Committee on December 26, 1966, that Japan Victor was a member of that committee, that Mr. Oguri represented Japan Victor in meetings of that committee, that the general subject matter described in the memorandum was discussed at the meeting, that the document on its face is addressed from Sales Promotion to Accounting and discusses matters on which action by the accounting section would be expected, that its date is in close proximity to the date of the committee meeting, and that it was preserved in the files of Japan Victor. We conclude that a fact-finder could reasonably infer that the document is what NUE and Zenith claim it to be: Mr. Oguri’s instruction to the accounting section to implement an agreement reached on December 26, 1966 at the committee meeting. Its admissibility must be separately considered, but prima facie it is authentic.
We have dealt thus far with all of the authenticity rulings made following the in limine hearing on admissibility. In addition the trial court made some evidentiary rulings on materials proffered under Rule 803(6) in its opinion granting summary judgment. 513 F.Supp. at 1211 n. 157, 1228, 1229, 1223-25. The documents in question include the MD group documents, DSS 101, 102, 103 and 104, and the Nine Essential Points of Implementation document which was an exhibit to the Recommended Decision in the market stabilization case before the Japanese Fair Trade Commission. The court excluded all of them, but it is not clear with respect to any of them that the ruling was based on lack of authenticity as well as inadmissibility under Rules 802, 803 and 804. In Part V E 2, infra, we hold that exhibits DSS 101,103 and 104 do not qualify for admission as business records; in Part V H, infra, we conclude that no other hearsay exception supports their admission. Thus we need not examine the record for prima facie evidence of their authenticity. The finding in the recommended decision of the Fair Trade Commission is evidence from which a factfinder could conclude that the Nine Essential Points document is what NUE and Zenith claim it to be. The trial court’s ruling on DSS 102, testimony of Mr. Saeki of MEI before the Japan Fair Trade Commission, is unclear. 513 F.Supp. at 1229. The testimony was sufficiently authenticated.
Since, except for DSS 101, 103 and 104, all of the documentary evidence which NUE and Zenith tender as admissible under Rule 803(6) has been sufficiently authenticated in compliance with Rule 901, we turn to admissibility. The trial court held that the question whether a document qualifies as a record of regularly conducted activity for purposes of Rule 803(6) must be answered by the court under Rule 104(a), not by the ultimate fact-finder. It held, as well, that in answering that question the court is not bound by the Rules of Evidence. Finally, the court held that it must be satisfied by a preponderance of the evidence that the preconditions for admission are satisfied. 505 F.Supp. at 1230. At least insofar as the rulings on preliminary questions involve factual issues, each of these rulings is correct. Moreover, our review of these factual determinations is by the clearly erroneous standard of Rule 52. To some extent, however, preliminary rulings about admission under Rule 803(6) involve the application to those facts of defined legal standards, and as to such applications our review is plenary.13
Business records are admissible under Rule 803(6) “if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Fed.R.Evid. 803(6). Despite the reference in the Rule to a qualified witness, the trial court held “that the testimony of the custodian or other qualified witness is not a sine qua non of admissibility in the occasional case where the requirements for qualification as a business record can be met by documentary evidence, affidavits, or admissions of the parties, i.e., by circumstantial evidence, or by a combination of direct and circumstantial evidence.” 505 F.Supp. at 1236. This interpretation of Rule 803(6) is not challenged here by the defendants. It seems, in any event, consistent with the spirit of the Rules. The ruling on admissibility is to be made by the court under Rule 104(a), and the court is not even confined, in making it, to admissible evidence. It would make little sense to require live witness testimony every time a business record is offered when, from the other materials open for the court’s consideration, it can make the required finding to its own satisfaction. The court held that in the absence of live witness testimony as to regularity of the activity and its recordation, the proponent “must show regularity of practice in some precise and explicit manner, either by external evidence or from the documents themselves plus surrounding circumstances.” Id.
Placing the burden of establishing regularity of practice on the proponent was also proper. Addressing the Rule 803(6) requirement that the record be made “by, or from information transmitted by, a person with knowledge,” the court held that the proponent must show “either (1) that the author of the document had personal knowledge of the matters reported, or (2) that the information he reported was transmitted by another person who had personal knowledge, acting in the course of a regularly conducted activity, or (3) that it was the author’s regular practice to record information transmitted by persons who had personal knowledge.” 505 F.Supp. at 1237. Both the allocation of this burden and the methods by which it may be satisfied were correctly stated by the court. Finally, turning to the Rule 803(6) proviso excluding business records when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness,” the court held that the burden of showing such untrustworthiness was on the party opposing admission. Id.
Placing this burden on the party opposing admission was correct.
The trial court held, however, that Rule 803(6) requires that the proponent of business records show that they were “created by routine practices where careful checking and habits of precision and regularity assure their accuracy.” E.g., 505 F.Supp. at 1271. In adopting this stringent standard the trial court looked to caselaw antedating the Evidence Rules. Even the pre-rules caselaw does not uniformly support so stringent a standard. Compare Standard Oil Company of California v. Moore, 251 F.2d 188, 215 (9th Cir.1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958) (requiring an established procedure “for the systematic or routine and timely making and preserving of company records”) with United States v. Hyde, 448 F.2d 815, 846 (5th Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972) (informal, regularly kept notes admissible). We do not believe that Rule 803(6) as drafted requires that the court independently analyze the procedures used by a business or its employees in making regularly kept records of regularly conducted business activity. The principal indice of reliability is that reliance on routine record keeping is essential to ongoing business activity. Deficiencies in the manner in which specific records are kept may be called to the court’s attention in carrying the burden of showing that the “method or circumstances of preparation indicate lack of trustworthiness.” Fed.R.Evid. 803(6). Given the separate treatment in Rule 803(6) of untrustworthiness, we think the regular practice requirement should be generously construed to favor admission. Thus, for example, it may well be that a record of a single meeting satisfied the regular practice requirement if the business in question routinely records other important meetings. Thus we agree with NUE and Zenith that the trial court generally imposed too stringent a burden of showing regularity of practice.
Our review of the trial court’s factual conclusions as to business records under Rule 104(a) is by the clearly erroneous standard. Where the facts are not in dispute, whether a given document is a business record is a legal question. If the court has misconstrued the requirements of Rule 803(6), its conclusion that a given record is not a business record may be legal error.
With these general observations in mind, we turn to the specifics.
a. The Diaries
(1) The Yajima Diaries
Exhibits DSS 48, 49 and 50 are three notebooks which the Japanese Fair Trade Commission seized from Toshiba Corporation in the course of its investigation in the Market Stabilization case. App., vol. 12, at 5087-5266. As noted above, the diaries were held to be authentic: that is, genuine diaries of Mr. Seiechi Yajima, who during the period covered by them, 1965 and 1966, was employed by Toshiba. During that period, Yajima attended, on Toshiba’s behalf, meetings of the Tenth Day and TS groups, at which meetings, according to NUE and Zenith, the Japanese defendants engaged in price fixing. The diaries are offered as evidence of what transpired at those meetings. The court held that diaries did not qualify for admission under Rule 803(6). 505 F.Supp. at 1270-73.
The court found that Mr. Yajima was a high management official with responsibility for production and sales planning whose attendance at the Tenth Day Group meetings was within the scope of the authority with which he had been entrusted by Toshiba, and that he reported to his superiors about what transpired at those meetings. 505 F.Supp. at 1270 n. 100. The diaries are referred to in the protocols (deposition testimony) in evidence, furnished by Mr. Yajima in the Japanese Fair Trade Commission case. The protocols establish that in 1966 Mr. Yajima attended meetings of the Tenth Day Group regularly (App., vol. 12, at 4925), that tentative decisions on price were arrived at (App., vol. 12, at 4916-17), but that although in attendance he had to consult with his superior in Toshiba before settling specific problems (App., vol. 12, at 4918). As translated, the diaries appear to be notes rather than complete transcripts of the meetings. The entries suggest the repetitive nature of Mr. Yajima’s note taking. Moreover the contents of the notations are entirely consistent with notations of proposed business activity which would be needed by someone without final decisional responsibility in order to inform his superiors and obtain such authority.
The trial court held that NUE and Zenith failed to establish regular practice. “In contrast to notions of regularity,” the judge observed, “the diaries are erratic.” 505 F.Supp. at 1271. The court’s observations about their style are, for purposes of the Rule 803(6) regular practice requirement, simply irrelevant. The court observed that Yajima’s notations “are, like most notes that one keeps for oneself, written in an irregular and shorthand manner which Yajima himself doubtless understood, but which no one else can. One cannot tell with any certainty where accounts begin and end. The diaries are laden with all kinds of arrows and symbols and code-like notations and references which are unintelligible.” Id.
See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 513 F.Supp. 1100, 1119 (E.D.Pa.1981).