Also known as: business records · public agency records · business record · public agency record · business records exception · public records exception
Written by attorneys · grounded in primary & secondary sources — see below
A category of records maintained in the regular course of business or governmental operations that may qualify for a hearsay exception when offered to prove the truth of matters asserted within them. The exception requires that the record was made at or near the time of the event by someone with knowledge, kept in the course of a regularly conducted activity, and made as a regular practice of that activity. The opponent may still exclude the record by showing that the source of information or the circumstances of preparation indicate a lack of trustworthiness.
Brandon Black sued Bayside Shipping after a collision at a rail crossing. Bayside offered an internal report prepared by its safety officer detailing the incident. The report followed the company's standard form but was created after the claims department anticipated litigation. The court excluded the report because its primary purpose was preparation for potential lawsuits rather than the ordinary conduct of shipping operations.
Belinda Baxter sued Beech Aircraft after a crash. Beech offered its routine maintenance logs showing inspections performed on the plane. A custodian testified that the logs were created at the time of each inspection by mechanics with direct knowledge and kept as part of the company's regular aircraft servicing practice. The court admitted the logs over a hearsay objection.
Select any source to read its text and confirm it supports the definition.
Bernard Bass refused to produce partnership financial ledgers in response to a grand jury subpoena. The government argued the records were ordinary business documents created in the regular course of the partnership's operations. The court held that the records could be compelled because they were not protected by the Fifth Amendment privilege against self-incrimination.
Bruce Baldwin received a subpoena for extensive business records. He argued that producing the records would require him to testify about their existence and location. The court ruled that the act of production itself carried testimonial significance and could not be compelled without immunity.
Brenda Booth, as custodian of corporate records for Blue Horizon Industries, was subpoenaed to produce company documents. She claimed the act of production would incriminate her personally. The court ordered production because a corporate custodian may not assert a personal Fifth Amendment privilege over corporate records.
Bradley Banks was ordered to sign a consent directive authorizing release of his foreign bank records. He argued the directive amounted to compelled testimony. The court upheld the order because the directive did not require Banks to admit the existence or authenticity of any records.
A record loses the protection of the business records exception when its primary purpose is preparation for litigation rather than the regular conduct of the enterprise. Courts examine whether the record was made in the ordinary course of business or instead to support anticipated legal proceedings.
Supporting sources
The proponent must show through the testimony of a custodian or other qualified witness that the record was made at or near the time of the event by someone with knowledge, kept in the course of a regularly conducted activity, and made as a regular practice of that activity. The opponent then bears the burden of showing lack of trustworthiness.
Supporting sources
No. A corporate custodian may not refuse to produce corporate records on Fifth Amendment grounds even if the records contain incriminating information. The privilege does not extend to records held in a representative capacity for the corporation.
…case.[^maj-6] Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia , 527 U. S. 116, 134…