Tuesday, July 3, 2012
Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(11), one type of self-authenticating evidence is a certified domestic record 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.
In other words, as the text of Rule 902(11) makes clear, it is an easy way for a party to authenticate records that satisfy the business records exception contained in Federal Rule of Evidence 803(6), as was the case in In re Von Kiel, 2012 WL 2328941 (Bkrtcy.E.D.Pa. 2012).
In Von Kiel, Erik Von Kiel (formerly known as Dennis Fluck), a doctor who owed $200,239.42 in Health Education Assistance Loans, sought a determination that for various reasons, (1) his loans should be deemed not to exist, or, in the alternative, (2) that the loans were discharged in his 1991 bankruptcy case, or, again in the alternative, (3) that the loans are dischargeable in his current bankruptcy case.
In response, the defendants the United States Department of Health & Human Services and the United States Department of Justice filed a motion for summary judgment which was supported by a declaration by Barry Blum, the Chief of the Referral Control Section of the Debt Management Branch of HHS.
Blum's Declaration set forth that, "as Chief of the Referral Control Section" ("RCS"), [he] is authorized to examine the records and claims of the HHS and to execute a Declaration of Facts based on these examinations; that "all documents attached hereto and referenced above are true and correct copies of official records maintained by HHS"; that "these files are kept in the ordinary course of HHS' regularly conducted activities and are made at or near the time by, or from, information transmitted by a person with knowledge"; and that HHS took assignment of the loans from Sallie Mae, and Sallie Mae took assignment of the loans....
Von Kiel claimed that the declaration was inadmissible hearsay that did not qualify for the business records exception contained in Rule 803(6) because Blum lacked personal knowledge about Von Kiel's loan documents, default, amount of payments and calculation of interest. The court disagreed, finding that to qualify under the business records exception a witness need only have knowledge of the procedures under which the records were created, not knowledge of the actual entries in the records.
Moreover, because the Blum declaration was accompanied by a certification, the court found that it was self-authenticating under Rule 902(11).