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Are Your Business Records Admissible?

(Hint: It Depends on Where You Try Your Case!)

Most trial lawyers are familiar with the provisions of Rule 803(6) of the Texas Rules of Evidence, providing for admissibility of business records. But many trial lawyers may not be aware of the conflict among Texas intermediate appellate courts concerning the admissibility of business records from one company that also contain business records from another company. This is not an uncommon occurrence. In cases involving debt collection, financial transactions, and business acquisitions, a company’s business records routinely include the business records of predecessor or selling entities.

The El Paso and Dallas Courts of Appeals have held that the witness signing the business records affidavit must have personal knowledge of the other company’s record keeping to support admissibility under Rule 803(6). Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 (Tex. App.—El Paso 209, no pet.) (citation omitted); Powell v. Vavro, McDonald & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.).

In contrast, the Houston First Court of Appeals has held that such records are admissible so long as (1) the document is incorporated and kept in the course of the testifying witness’s business, (2) that business typically relies on the accuracy of the document’s contents, and (3) circumstances establish that the document is trustworthy. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-45 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citation omitted).

Until the Texas Supreme Court resolves the conflict, such records are inadmissible in Dallas and El Paso, admissible in the Houston First court, and open to challenge in the remaining Texas appellate courts.