Evidence – Hearsay — ancient documents

Listen to this article

Wisconsin Court of Appeals

Civil

Evidence – Hearsay — ancient documents

Business invoices in the possession of a business’ attorney are admissible under the ancient documents exception to the hearsay rule.

“First, addressing the location of the invoices, we conclude that business invoices in possession of a business’s attorney are in a place where, if authentic, they are likely to be. That is particularly true here, where BSIS supplied asbestos products and has been actively engaged in litigation for several decades. We can think of no reason for an agent of a business to possess fraudulent invoices against the business’s interest. The mere fact that the invoices were possessed and turned over to Horak by BSIS’s agent—its former attorney—suggests their authenticity. See WIS. STAT. § 909.01 (‘requirements of authentication … are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims’). To rule otherwise would encourage parties engaged in litigation to defeat the admissibility of their own records by simply moving them to their attorneys’ offices.”

“We are unpersuaded by BSIS’s argument that authentication requires Horak to show how the invoices travelled from BSIS’s offices to its attorney’s office. Authentication does not require Horak to prove that the invoices are incontrovertibly what they purport to be, but rather authentication merely requires Horak to present evidence “sufficient to support a finding” that the invoices are what they purport to be. See id. (emphasis added). Whether Horak can explain how the invoices were transported from BSIS’s offices to its attorney’s office goes toward the weight of the invoices and is a question properly placed before a jury. See WIS. STAT. § 901.04(2) (‘When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.’).”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP414 Horak v. Building Services Industrial Sales Co.

Dist. I, Milwaukee County, Dugan, J., Brennan, J.

Attorneys: For Appellant: McCoy, Robert G., Chicago; Freilich, Jonathan, Chicago; For Respondent: Laffey, John J., Milwaukee