See also: BRIEFS; BUSINESS RECORDS
LETTERS.

Memoranda offered for the truth of the matters asserted are generally hearsay, unless, for example, they constitute admissions by a party-opponent.  Even where a memorandum does constitute hearsay, several hearsay exceptions may be applicable.

Business Records

Summary of federal business records exception.  To be admissible under the federal rules, a business record must have been created at or near the time of the acts or events recorded.  It must have been created by, or from information transmitted by, someone with personal knowledge of the facts.  It must also have been a regular practive of the business to make and preserve records of that type.  This foundation must be laid by a custodian of records or other qualified witness.  Records fulfilling these requirements will be admitted unless there is some indication that they are not trustworthy.{footnote}FRE 803(6). {/footnote}

With respect to office memoranda, the main obstacle to admission under this hearsay exception is the requirement that a record be of a type made as a regular business practice of the business.{footnote}See United States v. Keplinger, 776 F.2d 678, 694 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986).{/footnote}  While virtually every office produces memoranda, courts have looked to the specific nature of the memorandum involved to determine whether it was of a type made as a regular practice.  Using this approach, courts have found some types of memoranda admissible as business records,{footnote}United States v. Gleason, 616 F.2d 2, 23 (2d Cir. 1979)(bank memo evidencing order to reverse transfer of funds between accounts), cert. denied, 444 U.S. 1082 (1980); United States v. Tafoya, 757 F.2d 1522, 1528-29 (5th Cir.)(memoranda reflecting billings), cert. denied, 474 U.S. 921 (1985); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985)(various interoffice memoranda), cert. denied, 476 U.S. 1183 (1986); Gibbs v. State Farm Mutual Insurance Co., 544 F.2d 423, 428 (9th Cir. 1976)(insurance company interoffice memo describing status of claim); In re National Trust Group, Inc.,  Bnkrtcy M.D. Fla., No. 85-751-BK-J-GP (March 24, 1989)(bank memorandum regarding audit of excessive loans and conflicts of interest).
Holmes v. State, 671 N.E.2d 841, 858 (Ind. 1996) (handwritten message from restaurant night shift manage to day shift manager as to events taking place during night shift admissible because regularly made as part of night manager’s duties); Adamatic v. Progressive Baking Co., 667 A.2d 871, 874-75 (Me. 1995) (internal memorandum excluded as untrustworthy based on suspicious origin of the memorandum and fact that no other memoranda were produced).

{/footnote}  and others not.{footnote} [2706]United States v. Strother, 49 F.3d 869, 876 (2d Cir. 1995)(bank memos relating to specific overdrafts); United States v. Freidin, 849 F.2d 716, 720 (2d Cir. 1988)(accounting firm’s interoffice memorandum prepared by secretary relating to contribution to firm partner’s capital account; conviction reversed); Langon v. Department of Health and Human Services, 959 F.2d 1053, 1055, 1060 (D.C. Cir. 1992)(memo sent to employee by division head regarding employee’s work arrangements);  United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984)(defense contractor’s internal memoranda detailing history of contracts awardeed by Raytheon to others prepared as part of internal investigation);  Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F. Supp. 1190, 1232 (E.D.Pa. 1980)(various memoranda offfered in complex antitrust case).

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Memoranda have also been held inadmissible under the business records exception where they record matters which took place long before the date of the memorandum.{footnote}United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984)(defense contractor’s internal memoranda detailing history of contracts awardeed by Raytheon to others prepared as part of internal investigation).{/footnote}  Memoranda which are purely self-serving{footnote} [2708]Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 560 (5th Cir. 1980), cert. denied, 454 U.S. 927 (1981)(memorandum prepared by a business simply to portray itself in the "best light possible" held inadmissible).
{/footnote} or which were prepared for purposes of lititigation{footnote} [2709]United States v. Williams, 661 F.2d 528, 531 (5th Cir. 1981)(memorandum estimating value of stolen trailer prepared "clearly…for purposes of the trial" held inadmissible);{/footnote} have also been held inadmissible.