District of Massachusetts Notes a General 20 Minute Cutoff For Present Sense Impressions

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

So, how much time can pass after an event or condition before a statement is longer a present sense impression under this hearsay exception? That was the question addressed by the United States District Court for the District of Massachusetts in its recent opinion in Allscripts Healthcare, LLC v. DR/Decision Resources, LLC., 2021 WL 681976 (D.Mass. 2021).

In Allscripts, 

In June, 2014, Allscripts entered into a Master Data License Services Agreement (“the Agreement”) with DRG, a healthcare data analytics and consulting company that compiles and repackages licensed data for sale to third parties.

In February, 2018, Allscripts acquired an electronic health records company and subsequently formed a new business unit, Veradigm, which competes directly with DRG....

To verify that the data provided under the Agreement complied with the HIPAA Privacy Rule, Allscripts retained Dr. Patrick Baier, who issued a statistician certification (“the Certification”) in October, 2014. Paragraph 22 of the Certification provide[d] that

[DRG] will not provide patient level Allscripts data to a client, either alone or in combination with other data sources. [DRG] may disclose derivative works such as summaries and analytical results as long as they are not linked to any individuals.

In 2018, Dr. Baier issued a revised certification that contains the same language as the original Paragraph 22.

Subsequently, Allscripts alleged that DRG violated the Agreement, and DRG counterclaimed. To support its counterclaims, DRG sought to admit an e-mail about a meeting, claiming that it was admissible under Federal Rule of Evidence 803(1). The court disagreed, concluding that

For that exception to apply, the hearsay statement “must be made contemporaneously or immediately after the event described.” Taylor v. Erna, No. 08-10534, 2009 WL 2146675, at *5, 2009 U.S. Dist. LEXIS 61612, at *13 (D. Mass. July 14, 2009). Although there is “no bright-line rule indicating what will constitute contemporaneity,” statements made more than 20 minutes after the relevant event almost certainly do not meet that standard. See id. at *5, 2009 U.S. Dist. LEXIS 61612, at *14-15.

Here, the first email to describe the subject meeting was sent at 4:03 A.M., many hours after the prior day's meeting. DRG has proffered no evidence demonstrating that the particular email or any other was drafted during or immediately after the meeting. Accordingly, Fed. R. Evid. 803(1) is inapplicable.

I've seen one court allow a 23 minute passage of time under Rule 803(1), but I think the 20 minute cutoff is much more common.

-CM