Wednesday, November 24, 2010
Double Your Hearsay: SDNY Finds Customer Complaints In Business Records Inadmissible In Action Against MTA
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(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
The rationale behind the Rule is that employees of a business have an interest in recording events accurately to ensure that the business functions smoothly. Conversely, customers of that business have no similar interest, so customer complaints are not admissible under this Rule. Instead, they are hearsay within hearsay and inadmissible unless they meet an independent exception to the rule against hearsay as is clear from the recent opinion of the United States District Court for the Southern District of New York in Rivera v. Metropolitan Transit Authority, 2010 WL 4545579 (S.D.N.Y. 2010).
In Rivera, two Hispanic males brought an action under 42 U.S.C. § 1981 and 1983, among others, against the Metropolitan Transportation Authority ("MTA"), a number of MTA police officers, and others for, among other things, false arrest and excessive use of force. The plaintiffs' complaint alleged that they were singled out for this alleged treatment by reason of their race and ethnicity.
The defendants moved for partial summary judgment on, inter alia, the plaintiffs § 1981 claim. According to the court, the plaintiffs' memorandum made only a few assertions in support of the notion that any of the defendants intended to discriminate on the basis of race, including that
• "Defendant Sullivan has numerous complaints against him for racial slurs ... (Statement of Facts J Supra & Exh. EE)." [and]
• "The vast majority of civilians who filed complaints against Defendant MTAPD Officers and alleged excessive force were non-Caucasian or had names that indicate that they are ethnically diverse. ( Id.)"
And, according to the court,
The first two of plaintiffs' assertions rely on their Exhibit EE, which consists of documents relating to civilian complaints and investigations thereof made with respect to three of the individual defendants. Even taking the complaints at face value, they (1) reveal no substantiated complaints-not "numerous complaints"-against Sullivan for the use of a racial or ethnic slur, and (2) do not indicate the race or names of the complainants. None is a sworn statement by a complainant testifying to anything that any of the subjects of the complaints did or said. Inasmuch as the documents contain MTA accounts of what complainants said, they presumably are admissible under Fed.R.Evid. 801(d)(2) and/or 803(6), at least against the MTA, for the fact that the complainants made the allegations reported. They are not, however, admissible for the truth of what the complainants said. Plaintiffs' Exhibit EE therefore is insufficient on either ground to raise a genuine issue of material fact with respect to the allegation that any of the individual defendants acted with discriminatory intent.
In other words, the customer complaints were hearsay within hearsay under Federal Rule of Evidence 805 because they were statements by non-MTA employees and thus inadmissible to prove the truth of the matter asserted unless they met an independent exception to the rule against hearsay.