Court Clarifies Standards on Testimony

In Ocwen Loan Servicing, LLC v. Gundersen, 2016 Fla. App. LEXIS 14533 (Fla. 4th DCA Sept. 28, 2016), Florida’s Fourth District Court of Appeal clarified the standards by which an employee of a business entity may testify regarding that company’s business records. The law in Florida provides that “hearsay,” which is an out of court statement offered for the truth of the matter asserted, is not admissible at trial, unless it meets the qualifications of a particular exception to the rule against the admission of hearsay. An entity’s “business records” qualify as evidence which is admissible, regardless of whether they are hearsay. However, there is a question as to who may testify about such records, particularly where the records were first created by a different business entity.

Where one business acquires another business’s records and integrates them within its own records, the records are treated as being “made” by the acquiring business. If the acquiring business’s witness can testify that it had procedures in place to check the accuracy of the information received, and if the testifying witness is well enough acquainted with the process, then the records should be admissible.

In Gundersen, the witness demonstrated “sufficient familiarity” with the process. The witness testified that, if the accuracy of the records could not be verified, then the records would not be entered into the acquiring business’s records-keeping system. Although the trial court ruled that the witness was incapable of testifying to the business records, the Fourth District Court of Appeal reversed, claiming that the trial court abused its discretion in excluding the records.

The Gundersen court is not the first appellate court to reach this conclusion. However, the noteworthiness of the presence of the records in a records-keeping system bolsters the ability of a witness to testify as to its company’s records. Additionally, the court seems to indicate that the test of a witness being well enough acquainted with a particular process or category of record should be fairly simple to pass.