Potential litigants will sometimes generate documents concerning the facts and events that eventually lead to litigation. Those from businesses are often admissible under the business records exception to the hearsay rule. But what about those generated by individuals who are not covered by the business records exception? How does that affect your discovery strategy?
In King v. Indiana Harbor Belt Railroad a railroad conductor alleged his employer retaliated against him for various protected activities. A motion for summary judgment was filed but before the court could rule it had to address various evidentiary objections. The analysis focused primarily on “a series of handwritten memos that King purports to have jotted down contemporaneously with the events described therein. Predominantly, the memos summarize conversations King claims to have had with other IHB employees about his allegations of retaliation.” He argued his memos created genuine issues of material facts.
The documents weren’t authenticated.
A motion for summary judgment must be opposed with admissible evidence. This required authenticating the memos. “The memos have not been introduced by affidavit or any other sworn statement. King’s own declaration makes no mention of these writings, nor do any of the declarations submitted by his attorneys.” They were not sworn either, so the memos could not be considered equivalent to affidavits.
King argued he had authenticated the memos at his deposition. That argument did not work for multiple reasons. “First of all, King’s handwritten memos were not present at his deposition, and so he could not identify them on the record as the same documents he now submits” “Second, … King provided no details to corroborate whether the handwritten memos at issue are the same documents he vaguely mentioned on the record.”
The information they contained was not independently admissible.
The evidence used to oppose summary judgment itself need not be admissible so long as it could be presented in an admissible form at trial. It was agreed the memos themselves were hearsay, but could they qualify for an exception?
Plaintiff argued the memos were records of a regularly conducted activity. Rule 803(6) requires these types of records to be “kept in the course of a regularly conducted activity of a[n] … occupation.” “King presents no argument that his occupation as a conductor at IHB requires him to make these recordings, and nothing in the record reflects such a notion. In fact, King’s counsel admitted that these memos were created for purposes of litigation.”
He then argued the memos were present sense impressions under Rule 803(1). The court noted the logic for this exception “is that spontaneous utterances … are unlikely to be fabricated, because fabrication requires an opportunity for conscious reflection.” “Like a diary entry, King “had the opportunity to write down whatever [he] wanted to when [he made his entries]; they were not spontaneous utterances, but rather the rendition of events that [he] chose to put down on paper.” The memos would not be admissible as present sense impressions.
Plaintiff’s final argument was the memos were recorded recollections under Rule 803(5). Plaintiff could not meet the rule’s threshold requires that “(1) that the memos concern matters about which King once had knowledge but now has insufficient recollection to testify fully and accurately; and (2) that King made or adopted the memos when the matters were fresh in his memory and the memos reflect that knowledge correctly.”
The other problem was that if the memos had qualified for a hearsay exception, their content itself was still hearsay that could not otherwise fit within an exception.
The memos were excluded.
This all relates back to discovery. The memos had not been produced before the deposition, so the client could not have authenticated them there. During the discovery process, perhaps the evidentiary issues could have been evaluated, perhaps leading to additional depositions of witnesses concerning the memos content. That might have avoided the hearsay issues.
As often stated, no plan survives first contact with the enemy. Or as Mike Tyson put it, “everyone has a plan until they get punched in the mouth.” You have a plan, but so does the opponent. How each quickly each of you can surmise the opponent’s plan and adapt your own to fit the circumstances as you find them might be the difference between the client winning or losing.
 2:15-cv-245, 2018 U.S. Dist. LEXIS 193891, 2018 WL 5982134 (N.D. Ind. November 13, 2018).