Records of Regularly Conducted Activity: FRE 803(6) Business...

Introduction

In U.S. courts, hearsay is generally not allowed—unless a rule says otherwise. One of the most used exceptions is the “records of regularly conducted activity,” better known as the business records exception under Federal Rule of Evidence 803(6). It lets judges consider routine records—like invoices, medical charts, and driver logs—when certain requirements are met. This guide explains what counts, how to show admissibility, and where parties often run into trouble.

What You'll Learn

• What FRE 803(6) covers and why it matters in court
• The exact elements needed for admissibility
• How a custodian of records or a Rule 902(11) certification can replace live testimony
• When courts reject records as untrustworthy
• How to handle hearsay within hearsay inside a record
• Practical steps to get records admitted (or keep them out)
• Common examples from business, healthcare, and transportation
• Key related rules: FRE 803(7), 902(11)-(12), 805, and 1006

Core Concepts

The Rule and Its Elements (FRE 803(6))

A record of an act, event, condition, opinion, or diagnosis is not excluded by the hearsay rule if the proponent shows:

1. The record was made at or near the time of the matter recorded.
2. The record was made by—or from information transmitted by—someone with knowledge.
3. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling (whether or not for profit).
4. Making the record was a regular practice of that activity.
5. These facts are shown by a custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or a statute permitting certification.
6. The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Plainly put: routine records made in the ordinary course of operations, created around the time of the event by someone who knows what happened, and proven by the right witness or certification, will usually be admitted—unless the other side shows a reason to doubt them.

Who Can Prove It: Custodians, Qualified Witnesses, and Certifications

• Custodian or qualified witness: This person does not need first-hand knowledge of the specific event recorded. They do need to explain how the records are created and kept, and that making and keeping the records is a regular practice.
• Certifications (Rule 902(11) and (12)): Many business records can be self-authenticated through a written declaration from the custodian. This can avoid calling a live witness if:
  • The certification lays out the FRE 803(6) elements, and
  • The proponent gives the other side reasonable written notice and makes the record and certification available for inspection ahead of trial.
• Domestic vs. foreign records: Rule 902(11) covers domestic records; Rule 902(12) addresses foreign records with proper certification.

Tip: Even with a proper certification, be ready to address hearsay within hearsay, redactions, and completeness.

Trustworthiness Limits and Common Pitfalls

FRE 803(6) has an important backstop: judges can exclude a record if its source, method, or circumstances suggest it can’t be trusted. Common issues include:

• Prepared for litigation: Records created mainly to help with a lawsuit (e.g., a special report drafted at counsel’s request) may be excluded.
• Outsider statements: If a record includes statements from someone outside the business (a customer, bystander, or third party), that layer must fit another hearsay exception or be removed. The business records exception does not automatically sweep in outsider statements.
• Late entries or edits: Backdated entries, batch updates long after the event, or missing audit trails can raise reliability concerns.
• Data pipeline problems: Automated logs are admissible when systems are reliable and regularly maintained. Gaps in data handling or unexplained anomalies can lead to exclusion.
• Public records crossover: Government records are typically handled under FRE 803(8), not 803(6). Trying to route public records through 803(6) can create avoidable fights.

Typical Record Types and Special Considerations

• Financial and accounting records: Daily ledgers, invoices, payroll, and bank statements often qualify. Be sure to show the routine process and timing.
• Medical records: Diagnoses and treatment notes can come in under 803(6). Patient statements in those records may need 803(4) (statements for diagnosis or treatment) to handle the hearsay-within-hearsay layer.
• Transportation logs: Driver logbooks, electronic logging device (ELD) data, and maintenance logs typically qualify if created contemporaneously and kept as part of regular operations.
• Emails and spreadsheets: Not every email or ad hoc spreadsheet qualifies. You must show that creating and keeping those specific records is a regular practice, not a one-off.

Key Examples or Case Studies

Example 1: Smith v. Business Corp. — Financial Records

• Type of record: Daily transaction logs and monthly summaries.
• What the proponent showed: The company’s accountant explained the routine entry process, timing (entries made each business day), and that maintaining these records is standard practice.
• Outcome: Admitted under FRE 803(6).
• Takeaway: Show contemporaneous entry, a standard process, and that doing this is ordinary—not special for litigation.

Example 2: Doe v. Hospital — Medical Records

• Type of record: Patient chart with diagnoses, treatment orders, and progress notes.
• What the proponent showed: The records custodian described the hospital’s recordkeeping system, including timestamps, who enters what, and routine maintenance of the chart.
• Outcome: Admitted under FRE 803(6). Specific patient statements within the chart were addressed under FRE 803(4) where needed.
• Takeaway: For medical records, be ready to handle both the chart itself (803(6)) and patient statements recorded in it (803(4)).

Example 3: Johnson v. Transport Co. — Driver Log Books

• Type of record: Driver’s paper logbooks and ELD data documenting hours-of-service and routes.
• What the proponent showed: The safety manager testified that logs are created during each trip, reviewed weekly, and stored according to company policy and federal rules.
• Outcome: Admitted under FRE 803(6).
• Takeaway: Transportation records are strong candidates when entries are made at the time of the trip and kept as part of routine compliance.

Practical Applications

For proponents (getting records admitted):

• Map the elements early: Confirm timing, personal knowledge, routine creation, and routine retention.
• Choose the proof method: Live custodian/qualified witness or Rule 902(11) certification. If using a certification, give written notice and provide copies well before trial.
• Clean up hearsay layers: Identify outsider statements inside the record and line up separate exceptions (e.g., 803(4) for medical statements, 801(d)(2) for party statements) or redact them.
• Verify system reliability: For digital records, be ready to explain timestamps, audit trails, and error handling.
• Consider summaries: Use FRE 1006 to present summary charts of voluminous records, while making originals available.
• Anticipate objections: Prepare to answer trustworthiness challenges and explain any unusual circumstances (e.g., delayed entries).

For opponents (keeping records out or narrowing them):

• Challenge trustworthiness: Argue that the record was created mainly for litigation, contains late or edited entries, or lacks a reliable process.
• Target outsider statements: Object to embedded third-party statements unless a separate exception applies.
• Test the timing: If entries were not made at or near the event, press for exclusion or limiting instructions.
• Scrutinize certifications: Demand timely notice and a complete 902(11) or 902(12) declaration that actually covers each element.
• Seek redactions: Remove non-routine commentary, speculation, or materials outside the business’s normal practices.
• Use absence of a record: Under FRE 803(7), show that something likely would have been recorded—but wasn’t—to support your theory.

Compliance tips for businesses and hospitals:

• Use clear policies: Define who enters what, when entries must be made, and how corrections are logged.
• Time-stamp and identify authors: Make it easy to show “at or near the time” and “someone with knowledge.”
• Keep audit trails: Document changes and access, especially for electronic records.
• Train staff on consistency: Regular, uniform practices make admissibility far more likely.
• Retain records predictably: Follow retention schedules and back up digital archives.

Summary Checklist

• Record covers an act, event, condition, opinion, or diagnosis
• Made at or near the time by someone with knowledge
• Kept in the ordinary course of a regularly conducted activity
• Making and keeping the record is a regular practice
• Proven by custodian/qualified witness or a Rule 902(11)/(12) certification with proper notice
• Opponent has no persuasive showing of untrustworthiness
• Address hearsay within hearsay (use additional exceptions or redact)
• For medical records, pair 803(6) with 803(4) as needed
• For digital data, be ready to explain system reliability
• Consider FRE 1006 summaries for large volumes
• Consider FRE 803(7) to use (or challenge) the absence of a record

Quick Reference