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3. The office manager's testimony that the invoices show ten deliveries is
A corporation sued a defendant for ten fuel oil deliveries not paid for. The defendant denied that the deliveries were made. At trial, the corporation calls its office manager to testify that the corporation's employees always record each delivery in duplicate, give one copy to the customer, and place the other copy in the corporation's files; that he (the office manager) is the custodian of those files; and that his examination of the files before coming to court revealed that the ten deliveries were made.
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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, is admissible 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.
C is correct. Although the business records themselves would be admissible under FRE 803(6), the manager's oral testimony about the records would only be admissible in the event that the records themselves were shown to be unavailable, pursuant to the best evidence rule.
A is incorrect. This question asks whether the testimony about the records is admissible, not whether the records themselves are admissible. The business records exception to the hearsay rule would permit the records to be introduced for their contents. However, the best evidence rule precludes the testimony about the records as improper secondary evidence.
B is incorrect. The office manager's firsthand knowledge of the records may provide the authentication and identification of the records themselves, but his testimony about what is contained in the records must be shown by the original document if it is available.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The fact that the records are self-serving is irrelevant to the admissibility of the office manager's testimony, which is inadmissible because of the best evidence rule.