The Past's Fickle Shadow: A California Divide over the Business Records Exception

Norton Bankruptcy Law Adviser, January 2017, at 1

14 Pages Posted: 5 Mar 2017 Last revised: 13 Jan 2020

Date Written: 2017

Abstract

In 2015, the interpretive tranquility that had come to typify the jurisprudence surrounding one of the most well-rooted hearsay exceptions — the business records one (“BRE”) — was ruptured. In that year, in Sierra Managed Asset Plan, LLC v. Hale (“Hale”) and Unifund CCR LLC v. Dear (“Unifund”), two appellate divisions of the Superior Court of California issued conflicting opinions as to whether a debt assignee may demonstrate the BRE’s elements under California Evidence Code § 1271, thereby conclusively proving its prima facie case, with no more than a declaration of the assignee’s custodian of records. Hale, soon followed by others, answered in the negative. Twice, the court in Unifund concluded otherwise.

Despite these opinions’ state-law focus, for two reasons — in relevant part, language nearly identical to § 1271 appears in Federal Rule of Civil Procedure 803(6), and both federal and state courts have long accorded some respect to each other’s interpretations of similarly-worded evidentiary strictures — uncertainty has now been cast upon a rule pivotal to the smooth operation of the Bankruptcy Code, the means by which countless claims have been proven. Brief yet exhaustive, this article dissects these opinions and explores their consequences within and without both California and bankruptcy. For these reasons, this piece may serve as a useful guide for scholars not just of bankruptcy but of hearsay, showing from where the law has come and where it may go.

It begins in ancient times for one simple reason: as elsewhere, the past must first parsed, as it sets the stage upon which text and theory clash.

Keywords: hearsay, business records, public records, Blackstone, Wigmore, evidence, bankruptcy, liquidation, reorganization, Hale, Unifund, Bankruptcy Rule 9017, Federal Rules of Evidence, Rule 803(6), Rule 802, Rule 801

JEL Classification: K10, K12, K19, K20, K23, K29, K30, K35, K39, K40, K41

Suggested Citation

Shachmurove, Amir, The Past's Fickle Shadow: A California Divide over the Business Records Exception (2017). Norton Bankruptcy Law Adviser, January 2017, at 1, Available at SSRN: https://ssrn.com/abstract=2913852

Amir Shachmurove (Contact Author)

Reed Smith LLP ( email )

Washington, DC 20001
United States

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