How to Avoid Trouble With Record Certifications
Third-party discovery is a feature of essentially all American litigation. Even in the most routine of civil trials (which as we’ve written before is a tort-case involving a car), it’s highly likely that at least some of the evidence will have come from someone not involved in the lawsuit. In car crash cases, this will likely take the form of medical records. But no matter what the facts or claims at issue, there likely to be some third-party records that matter, whether they are account statements from a bank, phone records or location data from a cellular provider, or email correspondence from any poor soul with misfortune of communicating with one of the parties.
While the United States is somewhat unique in expecting third parties to cough up documents to assist in somebody else’s lawsuit, there are some protections designed to mitigate the unfairness. In Federal Court, Rule 45 actually requires that third parties who object to the production of documents be spared from “significant expense resulting from compliance.” [1] While many larger companies will simply turn over records without requesting that they be compensated for doing so, two Courts of Appeals to consider the issue have held that cost-shifting is mandatory where a third party will expend significant sums of money in collecting and producing documents. [2] So if somebody serves your client with a federal subpoena demanding an email search for the sun and the moon, you should object and demand that they cut a check first.
But even if third parties are spared the monetary cost of producing their records, they still can still be tremendously inconvenienced if they are required to testify about them. In some cases, this is unavoidable. Where a third party is a witness to whatever is in dispute, they’re probably going to have to testify. But there are plenty of other cases where the only testimony that the third party would provide is “yeah, this is a document from our files.” And that often seems like a massive waste of time to everyone concerned.
To avoid this, we have Fed. R. Evid. 903(11), 903(12), and 903(13). These rules, under the umbrella of “Evidence That Is Self-Authenticating,” permit a court to admit records based upon the written certification of a witness that the documents are “business records” for hearsay purposes. [3] For example, Rule 903(11) provides that:
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: …
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
Rules 902(12) and 902(13) are substantially similar and address records from foreign countries and records that are generated from electronic databases. In describing the rules, the 2017 Committee Notes are clear that the intention is to avoid making third parties show up for either a deposition or trial simply to authenticate some records:
The amendment sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing a witness to authenticate an item of electronic evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure under which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.
Because these rules exist, large companies will often respond to a subpoena seeking documents and a deposition by offering to produce a records certification along with the documents instead of a witness. Sounds great, right? You avoid the cost of taking a useless deposition and obtain the documents that you need. And should the case end up going to trial, you’ve got the records certification you need to have the documents admitted into evidence. What could go wrong?
As it turns out, quite a few things. So, before you accept a records certification in lieu of a deposition, consider how things can go awry.
In Rambus, Inc. v. Infineon Technologies AG, [4] a plaintiff in a patent infringement case sought to introduce 149 documents obtained from fourteen third party computer chip manufacturers using 902(11) certifications. The manufacturers included Dell, Fujitsu, Hewlett–Packard, Intel, IBM, Mitsubishi, NEC Electronics, Texas Instruments, and Toshiba, all brand-name companies represented by sophisticated counsel. Despite this, the district court found that none of them had drafted a 902(11) certification that was sufficient under the rule. In particular:
11 of the 14 certifications failed to swear to “knowledge of the record-keeping practices at the company.”
6 of the 14 certifications failed to swear that the records were made “at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters”
13 of the 14 certifications failed to swear “that the records were made by the regularly conducted activity as a regular practice.”
And Dell alone somehow managed to leave out a statement that the records were “kept in the course of a regularly conducted activity”
As a result, the court granted a motion in limine excluding all of documents as inadmissible under 902(11). And worse, the court found that it was “too late” to depose the third parties in order to obtain testimony that would permit any of the records to be introduced.
In United States v. Shah, [5] government prosecutors moved in limine to admit a defendant’s email and chat messages procured directly from Google. In an attempt to admit the documents as “business records,” the government obtained a 902(11) certification from Google. Unlike the tech companies involved in Rambus, the Google custodian at least attempted to comply with the business record requirements:
In the Google affidavit, [custodian] avers that Google automatically copies the information, entered by a GMail user into his or her own private emails or chats, to Google's servers at the time such email or chat is sent. [Custodian] further declares that such data collection is a regularly conducted activity, and that the record is kept in the course of Google's regularly conducted business.
However, this was not sufficient for the district court, who pointed out that the custodian did not (and realistically could not) swear that the documents were prepared by a person with knowledge of the facts that they contained. Since the records belonged to a Google customer, not Google itself, they were not Google’s business records and could not be admitted pursuant to a 902(11) certification from Google. Accordingly, the court denied the motion and held that the documents were not self-authenticating.
As both of these cases illustrate, while 902(11) certifications are useful, there is real risk in accepting one in lieu of a deposition. The tricky part is that admissibility decisions are often made through motions in limine decided only on the eve of trial. As the Rambus plaintiffs discovered, this means that you can find out that a certification is insufficient long after you have any ability to authenticate the documents in any other way. If you were relying upon that evidence to prove your case at trial this could be a major blow and may require you to drastically alter your strategy for no good reason.
How can you avoid this? One way would be to ignore the rule entirely and insist upon fulsome 30(b)(6) depositions of third-party witnesses. If you’ve ever personally had evidence excluded because of a rejected 902(11) this approach may be tempting. And if the most important evidence in your case comes from a third party, this may be the way to go. But it’s a potentially wasteful practice to apply in all situations.
There are other options. If your jurisdiction permits it, you can serve requests for admission on the other side before the close of discovery demanding that they admit that all third-party documents are admissible as business records. If the other side admits it, you don’t have to worry about a challenge at the last minute. If they deny, then you still have time to take a deposition and shore up the issue. And at least in federal court, this also puts the other side in a bind; if they deny the requests, they are potentially on the hook for the cost of proving the fact – that is to say, the cost of the deposition you will then take.
Of course, not every court permits requests for admission prior to the close of discovery. So, where you have to rely on a 902(11) certification, make sure that the third party you get it from does a better job than the chip makers. At a minimum, ensure that the certification swears that, as required by Fed. R. Evid. 803(6):
(A) the records were made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the records were kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
This isn’t a perfect solution. But by knowing that 902(11) certifications can fail and how to avoid common pitfalls, you can put yourself in a much better position to admit key third-party evidence and avoid problems at trial.
[1] Fed. R. Civ. P. 45(d)(2)(B)(ii).
[2] See Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (“We agree with the D.C. Circuit's analysis of the amended rule and hold that Rule 45(d)(2)(B)(ii) requires the district court to shift a non-party's costs of compliance with a subpoena, if those costs are significant.”); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001) (“Under the revised Rule 45, the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are “significant.” If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’ The rule is susceptible of no other interpretation.”).
[3] Fed. R. Evid. 803(6).
[4] 348 F.Supp.2d 698 (E.D. Va. 2004).
[5] 125 F.Supp.3d 570 (E.D.N.C. 2015).
