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29. On the issue of giving notice, the letter copy is
A construction company sued a development company for money owed on a cost-plus contract that required notice of proposed expenditures beyond original estimates. The defendant asserted that it never received the required notice. At trial the plaintiff calls a witness, its general manager, to testify that it is the plaintiff's routine practice to send cost overrun notices as required by the contract. The witness also offers a photocopy of the cost overrun notice letter to the defendant on which the plaintiff is relying, and which he has taken from the plaintiff's regular business files.
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The most crucial component of the hearsay rule is the initial determination of whether the out-of-court statement is being offered to prove the truth of the matter within it. When the statement is being offered for any purpose other than to prove the truth of its contents, there is no need to cross-examine the declarant, and so the statement is not considered hearsay. One example of this type of non-hearsay purpose is to establish that notice was received.
If the statement is being offered for the truth of its contents, then an exception may apply. Exceptions to the hearsay rule allow certain out-of-court statements to be offered as substantive evidence. One such exception is the business records exception under FRE 803(6). This Rule allows any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event to be admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6).
The best evidence rule is more accurately called the «original document rule.» The rule is as follows: In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent. Fed. R. Evid. 1002. If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies, notes, or oral testimony about the contents of the original if a satisfactory explanation is given for the non-production of the original.
B is correct. When an out-of-court statement (i.e., the copy of the letter) is being offered to establish notice, not for the truth of the matter asserted (i.e., what the proposed expenditures beyond the original estimates were), it is not considered hearsay. The letter copy is being offered to show that the plaintiff sent the letter, not to prove the actual contents of the letter, which is why it is not considered hearsay. In addition, evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The question asks whether the letter copy is admissible only on the issue of giving notice. This answer choice, however, states that the letter copy is «admissible, though hearsay, under the business record exception.» This explicit designation of the letter as hearsay is what makes this choice incorrect. As stated above, the letter is not considered hearsay because it is being offered to show that notice was given, not to prove its contents regarding the amount of proposed expenditures beyond the original estimates. Therefore, no exception to the hearsay rule is necessary because it is not being offered as substantive proof.
C is incorrect. As explained above, the letter copy is not being offered to prove the truth of its contents regarding the proposed expenditures. The question asks about the admissibility if it is only being offered to prove notice. Therefore, the letter is not considered hearsay when offered for this purpose.
D is incorrect. The best evidence rule allows for copies of an original document to be used when the proponent cannot produce the original document in court. Here, the plaintiff is alleging that they sent the original letter to the defendant, and as such, would not be able to produce the original in court. Therefore, secondary evidence in the form of a copy is sufficient.