State’s high court to revisit ancient documents exception

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Can old construction sales invoices be self-authenticating under the ancient documents exception in part because they were stored in an attorney’s office?

The Wisconsin Supreme Court will tackle this issue as part of a procedurally complicated Cindy Horak et al. v. Building Services Industrial Sales Co. et al., 2011 AP 414.

The crux of this asbestos litigation involves whether 38,000 documents given to plaintiff Cindy Horak’s attorney in 2006 require supporting testimony to indicate when they were made, how and where they were stored and if they are genuine.

In a dramatic second reversal of the trial court, in April the appellate court instructed the trial court to admit all of the disputed documents under Wisconsin’s ancient documents exception to the hearsay rule. Building Services Industrial Sales Co. asked the court to reconsider, but was refused.

The appellate court found that the 38,000 documents, if authentic, were in a place (BSIS’ attorneys’ offices) that they were “likely to be.”

“To rule otherwise,” said the appellate court, “would encourage parties engaged in litigation to defeat admissibility of their own records by simply moving them to their attorney’s offices.”

Case history

Cindy Horak’s father, George Benzinger, died from lung cancer after working more than 30 years in construction throughout Wisconsin. Before his death in November 2002, Benzinger was unable to provide any clue or testimony which could pinpoint when and where he might have been exposed to asbestos.

Horak filed suit in Milwaukee County in 2005, alleging negligence and strict tort liability. The defendant, BSIS, was a “middleman” company, doing no design, installation, repair, removal or contracting work of any kind on the insulation — just providing “pass through” product directly from manufacturers.

In 2006, BSIS’s counsel provided 38,000 pages of work-related documents and invoices to Horak, possibly in response to a discovery request. A successful trial court summary judgment motion by BSIS in 2006 was reversed and remanded by the appellate court, with instructions that the invoices created a “reasonable basis for a jury to find” that BSIS asbestos products caused Benzinger’s death.

BSIS then changed counsel and filed a motion in limine and new motion for summary judgment. The documents, according to BSIS, were inadmissible hearsay, and satisfied neither the business documents nor the ancient documents exceptions.

According to Horak, the documents were key to her case because “all Benzinger’s coworkers are deceased and his employers’ records are not available.” The only evidence available to show a supplier relationship was the BSIS invoices.

In a motion for summary judgment reconsideration and on appeal, Horak argued that the documents should be allowed under the ancient documents exception to the hearsay rule.

To be admitted as an “ancient document” under the Wis. Stat. 908.01(3), 908.02 and 908.03(16) exception to the hearsay rule, the document must: 1) be in existence at least 20 years ago and 2) its authenticity can be established.

To be considered “authentic” there must be an absence of suspicion regarding the condition of the document, and its repository is consistent with authenticity.

Ultimately, the trial court found that Horak “did not prove that the documents were in a place they were likely to be,” failing the statute’s authenticity test.

But in its April decision to reverse and remand the trial court, the appellate court explained that Horak did not have to “incontrovertibly” show that the discovery documents are what they purport to be — just that the evidence was “sufficient to support a finding” that they are what they purport to be.

In its recently filed state Supreme Court brief, BSIS blasted the appellate court decision to reverse summary judgment, saying the court had ignored precedent, disregarded the trial court’s role and authority in managing its cases and evidence, and “skipped over the most basic fundamental requirements of the ancient documents exception.”

The decision “created a new shortcut for authenticating documents,” BSIS explained, “and places an onerous burden on counsel … where now possession of documents equals authentication.”

The obligation for “ancient documents” to fulfill the requirements of Wisconsin law will be sorely undercut, BSIS contended, compromising a party’s previous obligation to lay a proper foundation.

BSIS asserted that if the appellate court decision is upheld, the game has changed. It wrote, “Now, as long as documents are at least 20 years old and at some time possessed by a party’s lawyer,” the documents will be admitted.

Counsel for BSIS referenced a recent decision by the same appellate court in Risse v. Allied Insulation Supply Co., 2012 WI App. 97, a case which involved the same defendant and even the same attorney for a different plaintiff. In that case, the appellate court indicated that the trial court had “ultimate discretion” to decide what evidence should be admitted or excluded.

Ultimately, BSIS said, the appellate court should not even be taking on this type of change, which could impact a longstanding hearsay exception. The ability and authority to “forge” new law “is the purview of the Wisconsin Supreme Court alone,” said BSIS, quoting Cook v. Cook, Wis. 2d 166 (1997).

“In defiance of 130 years of (Wisconsin) Supreme Court precedent, the court of appeals created a new evidentiary shortcut for documents that are over 20 years old,” BSIS wrote. The company said the proper decision would have been for the Court of Appeals to certify the issue to the state Supreme Court.

In its earlier appellate brief filed last year, Horak’s counsel restated that BSIS’ successful summary judgment flew in the face of the “law of the case” doctrine. When Horak appealed the first summary judgment in 2006, she said BSIS did not then dispute the admissibility of the 38,000 discovery documents.

At that time, the appellate court’s reverse and remand ruling was based upon and presupposed that the documentary evidence was “undisputed” and indicated that this evidence “creates a genuine issue of material fact.”

“BSIS had the opportunity to contest the admissibility of BSIS’ invoices at the first summary judgment stage,” said Horak, “but chose not to do so.”

In addition, Horak asserted, BSIS cannot play both sides of the legal fence against each other. In the earlier Risse case, Horak pointed out that BSIS counsel and company representatives had authenticated and used some of the same 38,000 discovery documents to positively show that BSIS had not provided asbestos product to another company for installation.

“Now BSIS and the same counsel assert that these same documents are not authentic and inadmissible,” Horak argued.

A decision is expected from the court later this term.