Updated - See Below
Every so often (like 99.9% of the time), documents actually do rule the day. Proving up a document's chain of custody (i.e., authenticating it) can be a mess during a live proceeding, especially if they originate from a non-party. Authentication can be especially tough if you've got someone on the other side that's decided to let his or her case stand and fall on the technical components of evidence law--i.e., the other side's case totally sucks.
How do you avoid objections to the authenticity of documents obtained from non-parties? Despite what many may tell you, Business Records Affidavits are not fool-proof. Depositions on Written Questions to non-party "Records Custodians," on the other hand, are about as close to fool-proof as you can get without calling the ghost of Johannes Gutenberg to testify.
Rules 200 and 176 of the Texas Rules of Civil Procedure govern Depositions on Written Questions. What I find likable about these official looking documents is that if you set up your forms correctly, you can send them en masse without actually using your brain.
Using Rules 803(6)-(10) and 902 of the Texas Rules of Evidence, I've tried to develop a standard set of direct examination questions for Records Custodians. You can use, modify, and share these questions by accessing this link or the one at the bottom of this post (just use at your own risk and don't be a jackass if something goes wrong).
Instead of quoting the statute, I've tried to phrase the necessary authenticity questions in a way that's more akin to the way someone other than a 1920s speakeasy patron would ask them. (Who wrote these statutes anyway?) Regardless of how you ask the questions, my experience has been that most Records Custodians are used to getting served with these types of discovery requests and do a fairly good job responding. Note, however, the box-checking and fill-in-the-blank format--I've found those features to be helpful.
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I just downloaded your records custodian deposition form. I love the format! Thanks for sharing this. I plan to use it in a records custodian deposition later today. I will let you know how it goes.
ReplyDeleteDo you have any cross-examination questions for the Custodian of Records? That would be nice. Thank you.
ReplyDeleteYou know, I don't think I've ever seen anyone ask cross-examination questions to a records custodian. That's a good question, though. Check out the evidence rules on the business records affidavit. There's a provision that allows the non-filing party to object to the authenticity of the records to prevent their automatic entry into evidence. I would imagine cross-examination questions for records custodian depositions would seek the same goal--i.e., ask questions that call into question the authenticity of the record, such as after-the-fact alteration or whether the custodian really knows what "relied on by the company," etc. means.
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