When is a business record not a business record. Without sounding silly, it is when it is someone else’s business. That explanation is fundamental and is express in the language of Rule 803(6) which talks of the record of that “activity” (the neutral word for “business”) and implicit in the requirement that the information therein be “by—or from information transmitted by—someone with knowledge.” The “someone with knowledge” phrase connotes a member of the activity/business, as only such a person has the duty and the interest of ensuring accuracy and only such a person could meet the criterion that “making the record was a regular practice of that activity … .” See Rule 803(6), Pa.R.Evid.

So why this “back to basics” review of business records fundamentals? That in particular the person who provided the information is a part of the business/activity as opposed to someone who is an “outside source … under no business duty to be accurate when preparing the records." See U.S. Bank v. Lawson, 2014-Ohio-463, P24.

The answer is because this criterion seemed absent in a recent business records holding. In In the Interest of R.B., 2024 Pa. Super. LEXIS 386, the Pennsylvania Superior Court reviewed an appeal from a dependency determination arising from children reportedly being truant from school. The trial judge directed the CUA (community umbrella agency) to produce the children’s school attendance records. At a subsequent hearing, a CUA supervisor “described how CUA obtains school records and that in this case, he submitted a request through DHS Education Support that obtained the records through the School District of Philadelphia.” The school records were admitted through the CUA witness.

How did the Superior Court panel rule?

Based on the foregoing, DHS established that: the records were made "at or near" the time of the adjudication hearing; that DHS obtained these records from the School District of Philadelphia, who keeps the records in the regular course of its business; and that DHS regularly obtains these records utilizing this method. Furthermore, mother and the GAL provided no evidence that the source of the information, or other circumstances, indicate a lack of trustworthiness or qualification. See Pa.R.E. 803(6).

What is problematic? First, although CUA added the school records to their file, the school district and its employees are not what the rule considers “someone with knowledge” who owe a duty to CUA. So their records are school district business records, not CUA business records. And merely putting them into CUA paperwork or a CUA folder can’t make them CUA 803(6) documents. The Pennsylvania Supreme Court said as much in 2018, when it rejected admission of Children and Youth records because “a great majority of the exhibits in the CYS file originated from an agency or individual other than CYS …” See In re A.J.R.H., 188 A.3d 1157, 1168 (Pa. 2018).

Second is the panel’s treatment of the Supreme Court precedent, deeming it inapt because here “the trial court was not confronted with a myriad of exhibits from varying sources and authors. The court merely made a determination regarding the children's individual school reports which came from a singular source.” The problem is that the Pennsylvania Supreme Court rule is not on the quantity of outside-the-business documents but on the inadmissibility of any outside-the-business document unless it is somehow authenticated such as being certified or has a nontruth purpose.

There is a final and equally problematic matter. A business record is deemed reliable in part because of contemporaneity between event and recording—the closer in time, the more likely it is to be accurate. Here, the records were supposed to be regarding absences from school in October; but the court explained that “DHS established that: the records were made "at or near" the time of the December adjudication hearing; 2024 Pa. Super. LEXIS 386, *4. The wrong time period calculus was used.

It may be that nonetheless there is no hearsay problem, if the attendance records were computer generated. Then they fall under the authentication rules, which allow for computer-stored or computer-generated data. See Rules 902(13) and 902(14), Pa.R.Evid. A certification and notice are the prerequisites to admission, and there is no indication if either was provided.

There are lots of documents/information in a business’s record (what we, pre-electronic storage, called a “file”). And there are proper ways to have that outside-the-business information made admissible for litigation. But it can’t be done by saying that someone else’s business is their business.

Jules Epstein is director of advocacy programs at Temple University Beasley School of Law.