Wednesday, August 22, 2012
Federal Rule of Evidence 1006 provides that
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
The placement of Rule 1006 in Article X of the Federal Rules of Evidence means that the Rule is a way of satisfying the Best Evidence Rule contained in Federal Rule of Evidence 1002, which provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
And what that means is that Rule 1006 does not provide an an exception to the rule against hearsay, which is contained in Article VIII of the Federal Rules of Evidence (see my prior post on the subject). In other words, if a summary, chart, or calculation contains inadmissible hearsay, it is just as inadmissible as a hearsay not contained in a summary, chart, or calculation. So, what are we to make of the recent opinion of the Sixth CIrcuit in Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, 2012 WL 3519463 (6th Cir. 2012).
Murphy involved an appeal of a breach-of-contract suit in which the plaintiffs sought to recover their capital investment from the general contractors, two individual guarantors, and one corporate guarantor, for low-income housing units that were never completed. In moving for summary judgment, the plaintiff, Alliant,
attached an affidavit by Brian Doran, a representative of Alliant, that provided calculations of the Development Deficit and rescission amounts. Doran swore that Alliant had invested $8,598,085 in the six LPs. He broke out the methodology and calculations for the Development Deficits for the five properties, and the rescission methodology and calculations for the sixth, incomplete, property. He reached a total damages amount of $8,194,136.
In appealing the entry of summary judgment against it, the defendants claimed hat this affidavit was improperly admitted.
The district court admitted Doran's calculations, over Murphy's objection of hearsay, as summaries admissible under FED.R.EVID. 1006 ("The proponent may use a summary...to prove the content of voluminous writings...that cannot be conveniently examined in court."). Murphy does not argue that the evidence did not constitute a summary for the purpose of Rule 1006; he merely argues that it is hearsay. A properly admitted summary is not hearsay. Murphy's first argument is meritless.
Either the Sixth Circuit is wrong, or I am not understanding what it is saying. Hearsay is a statement offered to prove the truth of the matter asserted. Therefore, it follows that a summary of hearsay statements sought to be admitted under Rule 1006 would also be hearsay. Again Rule 1006 solves the Best Evidence problem, but it tells us nothing about a hearsay problem. Now, if the court was merely saying that Doran's calculations were not hearsay regardless of Rule 1006, that's fine. But if it was saying that Doran's calculations were not hearsay because of Rule 1006, it was clearly wrong.