Also known as:803(6) · FRE 803(6) · Fed. R. Evid. 803(6) · business records exception
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception that admits a record of an act, event, condition, opinion, or diagnosis when the record was made at or near the time by or from information transmitted by someone with knowledge. The record must have been kept in the course of a regularly conducted activity of a business or organization, and making the record must have been a regular practice of that activity. The exception does not apply when the primary purpose of the record is preparation for litigation rather than the regular conduct of the enterprise.
Sources & Authorities· 2 primary sources
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Cases
Casebooks
Study Supplements
How it applies
Common Examples
2
Accident Report Prepared for Litigation
After a guest slipped on a wet floor at Royal Crest Hotels, the night manager prepared an internal incident report detailing the spill and the guest's fall. The report followed the hotel's standard form but was created after the guest threatened suit and was forwarded directly to the hotel's claims department. At trial the guest offers the report to prove the hotel knew of the hazard. The court excludes the report under Rule 803(6) because its dominant purpose was to prepare for anticipated litigation rather than to document ordinary hotel operations.
Laboratory Report Offered as Business Record
In a criminal prosecution, the state offers a DNA analysis report prepared by a private laboratory that regularly tests samples for law-enforcement agencies. The report was generated in the ordinary course of the lab's testing business and the analyst who performed the test had personal knowledge of the procedures used. The court admits the report under Rule 803(6) after the custodian testifies that the lab maintains such records as a regular part of its business activity.
Williams v. Illinois567 U.S. 50 (2012)
Common questions
Frequently Asked
4
What foundational elements must be shown to admit a record under Rule 803(6)?+
The proponent must establish that the record was made at or near the time by or from information transmitted by someone with knowledge, that it was kept in the course of a regularly conducted business activity, and that making the record was a regular practice of that activity. Testimony from a custodian or other qualified witness is ordinarily required to lay this foundation.
Supporting sources
Does Rule 803(6) admit a record created primarily for litigation?+
No. When the primary purpose of preparing the record is to assist in anticipated litigation rather than to document the regular conduct of the business, the record falls outside the exception. Courts examine the circumstances surrounding creation of the record to determine its dominant purpose.
May a record containing statements from an outsider to the business qualify under Rule 803(6)?+
Only the portions supplied by persons acting within the business and under a business duty to report are admissible under the exception. Statements from third parties who owe no business duty to the enterprise remain hearsay and require a separate exception or exclusion.
Supporting sources
Can a custodian authenticate business records without personal knowledge of the underlying events?+
Yes. The custodian need only be familiar with the record-keeping practices of the organization and able to testify that the records were made and kept in the regular course of business. Personal knowledge of the facts recorded is not required.
Supporting sources
FRE 803(6)
, the
business records exception
. That argument is not frivolous as a literal reading of
803(6)
might cover laboratory reports: the
rule
explicitly covers memoranda, reports,
records
or data compilations of acts, events,…
Civil ProcedurePretrial procedures · Adjudication without a trialUBEFoundational