In Deutsche Bank National Trust Company v. Hansen, 2011 WL 899625 (Ohio App. 5 Dist., 2011), borrowers defending a foreclosure action successfully challenged whether a bank’s representative could testify in an affidavit concerning the amount due based on a screen shot when the bank’s representative could not explain how such information was collected and compiled. Based on such facts, the borrowers argued the bank could not qualify the screen shot under the business record exception to the hearsay rule.
The borrowers argued that the trial court erred in admitting the screen shot as evidence of the amount due and sought to strike the affidavit of the bank representative, asserting that it was not based on her personal knowledge. The bank representative testified at her deposition that she did not know who entered the information into the computer to generate the amount owed, nor did she know how such information was collected and compiled. The borrowers argued that while her affidavit states that it was based on personal knowledge, the bank representative’s deposition testimony reflected that while she saw a screen shot of the balance due, she could not explain how that figure was arrived at by the bank.
Pursuant to Rule 56(C) of the Ohio Rules of Civil Procedure, only certain evidence and stipulations, as set forth in that section, may be considered by the court when deciding a motion for summary judgment. Specifically, the court is only to consider “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact.” However, the trial court may consider a type of document not expressly mentioned in Rule 56(C) if such document is “accompanied by a personal certification that [it is] genuine or [is] incorporated by reference in a properly framed affidavit pursuant to Rule 56(E).” Rule 56(E) of the Ohio Rules of Civil Procedure provides that an affidavit must “be made on personal knowledge, [and] set forth such facts as would be admissible in evidence.” An affiant's mere assertion that he or she has personal knowledge of the facts asserted in an affidavit can satisfy the personal knowledge requirement. A mere assertion of personal knowledge satisfies Rule 56(E) if the nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that the affiant has personal knowledge of the facts in the affidavit.
The Court of Appeals for Fairfield County determined that the bank’s representative did not have personal knowledge as to how the bank arrived at the balance due as viewed on the screen shot. The borrowers argued the screen shot is hearsay and did not meet the exception for a business record because there is no evidence of its origins or the circumstances surrounding its existence. Specifically, in her affidavit, the bank representative stated that the amount due and owing is $112,491.66, plus interest at the rate of 10.875% per annum. The borrowers argued that such evidence is hearsay because at the bank representative’s deposition, she did not know who entered the information into the computer to generate the number, nor did she know how such information was generated.
Evid. R. 803(6) governs the admissibility of business records as an exception to the hearsay rule:
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
The rationale behind Rule 803(6) of the Ohio Rules of Evidence is that if information is sufficiently trustworthy that a business is willing to rely on it in making business decisions, the courts should be willing to as well. “To qualify for admission under Rule 803(6), a business record must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by some ‘other qualified witness.’ The phrase “other qualified witness” should be broadly interpreted. Further, it is not necessary that the witness have firsthand knowledge of the transaction giving rise to the record. “Rather, it must be demonstrated that: the witness is sufficiently familiar with the operation of the business and with the circumstances of the record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of Rule 803(6).”
Even after the above elements are established, however, a business record may be excluded from evidence if ‘the source of information or the method or circumstances of preparation indicate lack of trustworthiness.’ Before application of Rule 803(6), and prior to admission of a business record, the record must also be properly identified or authenticated, “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evid.R. 901(A) (requiring only that a proponent of a document produce “evidence sufficient to support a finding that the matter in question” is what the proponent claims it to be.)
In order to properly authenticate business records, a witness must “testify as to the regularity and reliability of the business activity involved in the creation of the record.” Firsthand knowledge of the transaction is not required by the witness providing the foundation; however ‘it must be demonstrated that the witness is sufficiently familiar with the operation of the business and with the circumstances of the record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of Rule 803(6).’
Construing Rule 803(6) of the Ohio Rules of Evidence against the bank, the Court of Appeals determined the trial court erred when granting summary judgment in favor of the bank by admitting the screen shot as evidence of the amount. Consequently, the judgment of the trial court was reversed and the matter was remanded for further proceedings.