Wisconsin Business and Commercial Litigation

In a case arising out of Madison, the Court of Appeals decided that to qualify under the business records exception to the hearsay rule, a party must provide testimony of someone with personal knowledge of how the business records were prepared and used.  Palisades Collection v. Kalal puts Wisconsin in the minority, according to Dave Ziemer of the Wisconsin Law Journal:

Nationwide, there is a consensus among the federal courts of appeal that third party business records are admissible evidence under the hearsay exception in FRE 803(6).

Ziemer’s article about the case provides some interesting insights into the Wisconsin rule and its comparison with other jurisdictions, pointing out many that go exactly the opposite direction:

However, there is a plethora of federal cases holding that records created by a third party and integrated into another entity’s records is admissible as the record of the custodian entity, provided the custodian relied on the accuracy of the record. (U.S. v. Adefehinti, 510 F.3d 319 (D.C.Cir.2007); Air Land Forwarders, Inc. v. U.S., 12 F.3d 1338 (Fed.Cir.1999); U.S. v. Childs, 5 F.3d 1328 (9th Cir. 1993); U.S. v. Duncan, 919 F.2d 981 (5th Cir. 1990); Resolution Trust Corp. v. Eason, 17 F.3d 1126 (8th Cir. 1994).)

The Eighth Circuit reaffirmed this principle just last month in Brawner v. Allstate Indemnity Co., No. 08-3544 (8th Cir., Jan. 8, 2010).

In addition, on facts materially identical to those in the case at bar, Massachusetts highest court held that the records were admissible business records. (Beal Bank, SSB, v. Eurich, 831 N.E.2d 909 (Mass. 2005).)

Regardless, for now, those of you who intend to rely on the business records of another company to prove your case would be wise to come prepared with a witness who has personal knowledge of the creation and use of those records.

Witness photo courtesy Extraordinary Chambers in the Courts of Cambodia flickr photostream through this creative commons license.