Friday, August 14, 2009
The Glowers Of Guatemala: Eleveth Circuit Deems Internet Press Release Inadmissible In Forum Non Conveniens Appeal
Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(1) , or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
It is my belief that the Eleventh Circuit badly misconstrued this "business records" exception to the rule against hearsay in its recent opinion in Aldana v. Del Monte Fresh Produce N.A., Inc., 2009 WL 2460978 (11th Cir. 2009).
In Aldana, seven plaintiffs sued Del Monte and Bandegua, a wholly owned subsidiary of Del Monte, in the United States District Court for the Southern District of Florida, asserting causes of action for torture under both the Torture Victim Protection Act and the Alien Tort Statute after a protracted labor dispute in Guatemala and its aftermath. After an equally protracted procedural history, the district court finally granted the defendant's motion to dismiss on grounds of forum non conveniens because Guatemala afforded the plaintiffs an adequate alternative forum for the resolution of their claims.
In reaching this conclusion, the court refused to consider
"new and recent evidence”"of violence against union leaders like the [plaintiffs]. Specifically, they point[ed] to the alleged murder of Marco Ramirez, who, like the plaintiffs, was a member of SITRABI [a Guatemalan national trade union of plantation workers]. As evidence of the murder, the [plaintiffs]...submitted to the District Court a copy of a press release from The Center for Labor Solidarity in Guatemala, which stated that: “Ramirez's murder is the most recent in a series of threats and attacks against SITRABI and its leaders."
This refusal prompted the plaintiffs' appeal to the Eleventh Circuit, during which they claimed that "the press release should be viewed as a business record because 'it was issued by the Solidarity Center in the ordinary course of its business as a well-respected, nongovernmental organization that frequently issues such releases.'" The Eleventh Circuit, however, noted that "this press release was taken from the group's Internet website" and found that the press release was inadmissible because "the [plaintiffs] cite[d] no case, and we have been unable to find any, in which a press release from an Internet website qualified as a business record within the meaning of the exception."
I don't see the court's point. Press releases on internet websites are still relatively new, so it is not surprising that there is no case law on the issue. But unless the court found case law convincingly deeming such evidence inadmissible, shouldn't the court have addressed the issue rather than skirting it? Moreover, if regular press releases are admissible as business records, cf. Ellis ex rel. Lanthrn v. Jamerson, 174 F.Supp.2d 747, 753 (E.D. Tenn. 2001), shouldn't the same hold for internet business records?
Well, apparently not, according to the Eleventh Circuit, which found that "the press release lack[ed] the indicia of reliability that are typically required of evidence admitted under an exception to the hearsay rule." Now, I'm not sure what the court was saying because it didn't explain this holding. Was the press release lacking sufficient indicia of reliability because it was on the internet? Because it was from a foreign country? While I don't know the basis for the court's holding I do know that it applied the wrong standard. For the court to deem the press release inadmissible under Federal Rule of Evidence 803(6), it had to find that "the source of information or the method or circumstances of preparation indicate[d] lack of trustworthiness" in the press release, not simply that the release lacked sufficient indicia of reliability. While it might seem like I am parsing words, the key point is that, under the court's reading, the plaintiffs had to prove that the press release was reliable while under the correct reading, the court had to explain why the release was unreliable, which it did not.