This article is intended to provide helpful guidance with respect to one of those exceptions -- the then-existing mental, emotional, or physical condition exception to hearsay codified at Rule 803(3). Knowing this rule, and the situations in which you can apply it, will help streamline the presentation of your damages case. In fact, you may even be able to establish your entire damages case with just your customer’s out-of-court statement.Federal Rule of Evidence 803(3) provides one of many exceptions to the rule against hearsay and states that the following is not hearsay: “[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health) …” In short, an out-of-court statement made about an existing future plan is not hearsay and can come in as substantive evidence.The First Circuit Court of Appeals and the United States District Court for the District of Massachusetts have provided a plaintiff-friendly interpretation of Rule 803(3) that can help establish entitlement to damages.In Packgen v. Berry Plastics Corporation, the plaintiff manufactured specialty containers for holding a volatile chemical used to refine crude oil. The plaintiff redesigned the container, sold more than 7,500 containers to its primary customer, and then began marketing the redesigned product directly to oil refineries as potential new customers. The “dec

It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established.

The 1st Circuit Court of Appeals recently affirmed a district court’s ruling to allow in evidence a mortgage loan account history printout that included entries from two prior loan servicers as a business record exception to the rule against hearsay. In U.S. Bank Trust, N.A. v. Jones,[1] the court confirmed that the document’s admission under Federal Rule of Evidence 803(6) was proper because the information was sufficiently reliable based on testimony from the current loan servicer’s employee without the need for testimony from any of the prior loan servicers. The court emphasized that the admission of integrated business records turns “on the particular facts of each case.”

McClendon v. Challenge Financial Investors Corp., No. 1:08CV1189, Slip Copy, 2009 WL 589245 (N.D. Ohio, Mar 09, 2009).A District Court in Ohio declined to remand this action to state court holding that the declaration of the defendants’ witness which stated that the amount in controversy exceeded $5 million fell within the business records exception of Fed. R. Evid. 803(6).The plaintiff, a purchaser of mortgage loan services from the defendant, Challenge, brought a class action in state court alleging that the defendant violated the Ohio Mortgage Broker Act and breached common law fiduciary duties while selling loan services.

"The business records exception allows admission of records of regularly conducted activity through the testimony of a custodian or other qualified witness." Crash Dummy Movie, LLC v.Mattel, Inc., 601 F.3d 1387, 1392 (Fed. Cir. 2010) (citing Fed. R. Evid. 803(6)). The "record" must meet the following five requirements to be admissible:(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;(C) making the record was a regular practice of that activity;(D) all of these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and(E) the opponent does not show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.Fed.

at 6-8.FRE 803. FRE 803 is being changed to clarify that the opponent of a business or public record—which otherwise qualifies for admission under the hearsay rules—must show that the record is not trustworthy in order to keep it out of evidence.

It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established.

Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from electronic sources (902(14)), are slated to become effective in 2017. These proposals are intended to address potential evidentiary issues arising out of the long-term storage of electronic evidence and unnecessarily cumbersome processes for authentication of electronic evidence.

On appeal, Wi-LAN presented three theories as to why the district court erred in finding this evidence inadmissible, all of which the Federal Circuit rejected.First, Wi-LAN argued that the source code printouts constituted a business record and thus were admissible as an exception to the hearsay rule under Federal Rule of Evidence 803(6). Specifically, Wi-LAN argued that it properly authenticated the printouts through the declarations of the chip manufacturers’ employees.

3(6) of the Maine Rules of Evidence in The Bank of New York Mellon v. Shone. It held:“[A] record that one business has received from another is admissible under Rule 803(6) without testimony about the practices of the business that created the record, provided, first, that the proponent of the evidence establishes that the receiving business has integrated the record into its own records, has verified or otherwise established the accuracy of the contents of the record, and has relied on the record in the conduct of its operations, and second, that the opponent of admission has not shown that the record is nonetheless not sufficiently trustworthy to be admitted.”Shone finally resolves the conflict between two competing interpretations of Rule 803(6) that had arisen over the last 35 years, returning the business records exception to the rule originally adopted by the Law Court in Northeast Bank & Trust Co. v. Soley, and consistent with the federal court’s interpretation of the identical Federal Rule of Evidence 803(6).The facts of Shone are straightforward.