August 10, 2019

Status as a Business Record Depends on the Function of the Document; A.S. v. Ind. Dep’t of Child Servs. (In re L.S.)

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Evidentiary issues involving the rule against hearsay is an everyday part of the life of many litigators. And a commonly used exception to this rule is the business records exception embodied in Evidence Rule 803(6). But not every document a business prepares qualifies as a “business record” for the purposes of this Rule. This case provides a lesson on how to tell a “business record” from something that is not.

A child was born in October 2015 with drugs in her system. DCS filed a CHINS petition the next day, and Mother admitted to the allegations. Mother was ordered to participate in certain programs, including random drug screenings. But during DCS’s attempts to reunify the family, Mother did not have a single clean drug screen, and did not cooperate with various aspects of the reunification plan.

DCS filed to terminate the parent-child relationship in February 2018, and the trial court held a hearing. At that hearing, DCS introduced two affidavits from a lab that analyzed Mother’s drug tests. Those affidavits described the lab’s procedures, stated that the procedures were followed in this case, and attached the results of those tests. Mother objected, arguing that this was all hearsay, and DCS argued that they were admissible as business records. The trial court admitted the evidence and relied on it when granting DCS’s petition to terminate parental rights. Mother appealed.

On appeal, the Court said that the question of whether a business’s document qualifies as a business record for the purposes of Rule 803(6) is governed by

whether a business depends on those records to function. Forensic Fluids Laboratories does not depend on these records to operate or to conduct business. Rather, the drug test results were documented for the benefit of DCS. … Admission of this evidence requires expert testimony and the opportunity for cross-examination.

When reaching this conclusion, the Court relied on the Indiana Supreme Court’s discussion of this exception in In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639 (Ind. 2004), which noted that business records are an exception because “the fact that the organization depends on them to operate” demonstrates their reliability. Therefore, records that “a company does not rely upon … for the performance of its functions” do not fall within this exception.

The fact that the trial court erred when admitting this evidence was harmless in this case, given “substantial evidence independent of these two exhibits” supporting the trial court’s findings of fact. But the Court’s lesson regarding what constitutes a business record is important for all litigators to learn.

Lessons:

  1. Not all records produced by a business are “business records” for the purposes of Evid. R. 803(6).
  2. Whether a business’s record is a “business record” depends on whether the business uses the record to operate or conduct business.
  3. Do not assume that your document will be admitted if you lay a business records foundation that satisfies the five subsections of Rule 803(6). By case law, there is now a further requirement: the record must be one the business “depends on” in order “to function.”