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By: Ryan Babcock
The hearsay exception for “compiled information” or market reports is an important tool that allows for the admission of such evidence notwithstanding the hearsay rule, but it is generally strictly applied by the courts. For that reason, counsel must carefully consider whether the rule permits the admission of such evidence in developing a trial strategy with respect to the admissibility of certain exhibits.
The hearsay exception for market reports and other compilations is defined as follows by Rule 803(17) of the Federal Rules of Evidence:
Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
Most courts find these compilations reliable, and admissible, provided that they are used by the public or a particular profession or occupation (and thus reliability is supported by market forces). In weighing the admissibility of such evidence, courts usually also consider whether the evidence is “necessary,” such as whether it is the only way to determine the truth of the matter at issue, and whether locating the person who made the report would be impossible. Recent state cases in the criminal context drive home this point: People v. Hard, 342 P.3d 572, 575–79 (Colo. App. 2014) (no necessity to rely on drugs.com for evidence that the defendant possessed a particular unprescribed pharmaceutical drug because the state could, but did not, have the drug tested); Hardy v. Florida, 140 So. 3d 1016, 1019–21 (Fla. Dist. Ct. App. 2014) (finding that evidence from the E-FORCSE database should not have been admitted because it was not published—as required by Florida’s evidence rules—and noting that there was no evidence that the information in the database was “reliable,” rather than simply being an investigative
tool); People v. Franzen, 210 Cal. App. 4th 1193, 1209 n.6, 1213–14 (Cal. Ct. App. 2012) (no necessity for database evidence because the state could have subpoenaed the telephone company, and the Entersect website was not shown to be accurate).
Certain statements in a publication or “compilations” would clearly not qualify under the rule. See Danner v. Int’l Freight Sys., 855 F. Supp. 2d 433, 472 & n.53 (D. Md. 2012) (noting that a quote from a popular magazine, without citation, regarding the “increased trophy fee” for a lion obtained in an overseas safari is inadmissible). A federal district court in Texas has rejected efforts to use a LinkedIn profile to determine a person’s location, finding the requisites of reliability and necessity clearly unsatisfied. Personal Audio, LLC v. CBS Corp., No. 2:13-CV-270-JRG-RSP, 2014 U.S. Dist. LEXIS 37089, at *15–16 (E.D. Tex. Mar. 20 2014) (Payne, Mag. J.). And the Fourth Circuit has recently explained that statements in a material safety data sheet would not be sufficiently reliable to be admitted under this exception, inasmuch as the statements were opinion statements, or warnings, made in an effort to limit liability, not factual compilations as such. In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 810 F.3d 913, 923–24 (2016) (such evidence was admissible as non-hearsay to show notice).
In another case, a plaintiff’s attempt to admit certain industry publications and stock analyst reports, in wholesale form, as exhibits was rejected by a federal district court, which explained that courts take a narrow view of the exception, applying it to true compilations, not documents containing narrative and potentially subjective opinion. The court did note that properly redacted exhibits might be admitted at a later date. Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 U.S. Dist. LEXIS 3430, at *2–7 (E.D. Tex. Jan. 12, 2014).
Counsel should also bear in mind authentication, when there is any question concerning the authenticity of the evidence. In such circumstances, counsel must be prepared to lay a foundation, through live witness testimony or otherwise, that the compilation or market report is properly authenticated. See, e.g., Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS, 2013 U.S. Dist. LEXIS 10670, at *21–22 (D.N.M. Jan. 18, 2013) (authentication required as to a document purporting to show the great decline of the price of potatoes). And while the evidence from the compilation may properly get into evidence, that evidence alone may not suffice to overcome summary judgment, especially where the figures given are in the form of a range and the proponent of the compilation offers no additional evidence regarding the fact at issue. See Colvin v. Ameri-National Corp., No. 1 CA-CV 10-0528, 2011 Ariz. App. Unpub. LEXIS 1240, at *9–11 (Ariz. Ct. App. Oct. 4, 2011) (finding Kelley Blue Book admissible but insufficient to establish the valuation of the plaintiff’s Honda, as there was no particular evidence regarding the vehicle’s condition). Alternatively, counsel should consider whether the court might take judicial notice of the compilation at issue. Hines v. Shineski, No. 10-3973, 2012 U.S. App. Vet. Claims LEXIS 1385, at *9 (Vet. Claims App. July 5, 2012) (taking judicial notice of a city directory for 1967–68).
“Originally published in the Spring 2016 Newsletter of the American Bar Association’s Trial Evidence Committee.”