Thus spake the trusty attorneys for Raju K. Mukhi, Docket No. 15315-19, filed 12/16/24. Y’all who are from around my blog will recollect that Raju lost the nonassessable joust over Section 8039 furriner chops. What, no? See my blogpost “È Pur Nonassessable,” 11/18/24*.

Now, as trial looms, the fight becomes over the evidence of Raju’s offshore dealings, and the certification of Ms. Eveline Schmocker-Meier, an employee of Clariden Leu in Zurich, Switzerland. She is certifying a bunch documents (hi, Judge Holmes) allegedly exemplifying Raju’s Helvetian hijinks.

Judge Travis A. (“Tag”) Greaves referees the fracas.

First, classic hearsay. Out-of-court statements offered for the truth thereof, not subject to cross-examination, are out. And you can’t cross-examine pieces of paper or concatenations of electrons. But there are a bunch exceptions: whatever shall we do without exceptions?

“… foreign business record of a regularly conducted activity satisfies both a hearsay exception and the authentication requirement if the record meets certain criteria. Fed. R. Evid. 803(6), 902(11), (12). First, the record must have been made at or near the time of the event by someone with firsthand knowledge or through information transmitted by that person. Fed. R. Evid. 803(6)(A). Documents such as financial statements that are prepared periodically satisfy this timing requirement.” Order, at p. 4.

The documents must be kept in the ordinary course of a regularly-conducted business, and be kept as a regular practice. Hence, material prepared for litigation or other one-offs don’t make the cut. “Regularly integrated with day-to-day business affairs” is the magic language.

And the custodian or other qualifying witness, while not necessarily having first-hand knowledge of the process, must know enough to be able to testify with specificity about it. And has to be able to testify about it without showing that the stuff is untrustworthy.

Of course, the other side has to be able to see and review the stuff, FRE §803(6)(D), 902(11).

Last scene of all that ends this strange eventful history, the document’s certification must have been signed “in a manner that, if falsely made, would subject the certifier to a criminal penalty in the country where the certification is signed.” Fed. R. Evid. 803(6)(D), 902(12). In addition to these considerations, “[t]he principal precondition [of this exception] is that the records have sufficient indicia of trustworthiness to be considered reliable.” Order, at pp. 4-5. (Citation omitted).

OK, but how about authentication?

Needn’t be conclusively established, but only a preponderance of evidence presented. Circumstances where document produced and content of document are the tests. Here, documents produced in response to an IRS IDR, or which have binding legal force (like contracts), or admissions against interest, make the cut.

Judge Tag Greaves’ examination of foreign-source documents is worth a read by anyone learning, or reviewing, objections to documentary evidence.

* https://taishofflaw.com/2024/11/18/e-pur-nonassessable/