District Court Finds Inmate Food Grievances Not Admissible as Business Records, Might be Admissible to Prove Notice

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

“[H]uman resources and payroll databases…are textbook examples of records of regularly conducted activity within the hearsay exception of Rule 803(6).” Fredrickson v. Starbucks Corp., 980 F. Supp. 2d 1227, 1231 (D. Or. 2013). But what about food-related grievances filed by various inmates at a correctional facility?

In Hill v. County of Montgomery, 2020 WL 819225 (N.D.N.Y. 2020), inmates filed such grievances and sought to admit them under Rule 803(6). The court, however, held that

Plaintiff has not demonstrated how inmates who made grievances were acting “in the course of a regularly conducted business activity” or how making the grievances was “a regular practice of that activity.” Fed. R. Evid. 803(6)(B), (C); see Fed. R. Evid. 803, Advisory Committee Notes (1972 Proposed Rules) (“The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying on them or by a duty to make an accurate record as part of a continuing job or occupation”); see, e.g., United States v. Strother, 49 F.3d 869, 876 (2d Cir. 1995) (“We are reluctant to adopt a rule that would permit the introduction into evidence of memoranda drafted in response to unusual or ‘isolated’ events, particularly where the entrant may have a motive to be less than accurate.”) (citations omitted); Abascal, 820 F.3d at 565 (ruling that prison monitoring report prepared by a private nonprofit corporation based on inmate questionnaires, interviewing guards and visiting the facility “is not the kind of ‘regularly conducted activity’ contemplated by the business records exception”).

Defendants argue that the grievances are, in any event, inadmissible under the business records exception because they “lack overall indications of trustworthiness and reliability.” (Dkt. No. 216, at 10). “A duty to report … ‘has long been recognized as the principal means of establishing the reliability of a hearsay statement’ offered under the Business Records Exception.” Abascal, 820 F.3d at 566 (quoting United States v. Reyes, 157 F.3d 949, 952 (2d Cir. 1998)). Here, MCJ inmates were under no duty to submit grievances to facility staff regarding food or nutrition. In Abascal, the Court found that inmates’ statements “lack[ed] indicia of trustworthiness” when they “were under no obligation to provide information” to the investigators preparing a prison monitoring report. Id.; see also Lewis v. Velez, 149 F.R.D. 474, at 486 (S.D.N.Y. 1993) (concluding incident reports prepared by correction officers following prison incident, explaining that “reports of inmate beatings show a lack of reliability and trustworthiness due to the self-interest of the correction officers responsible for the records, such records are inadmissible”). Accordingly, on this record Plaintiffs have failed to show how the grievances are admissible under the business records exception.

That said, the court then went on to find that

Plaintiffs further argue that even if the grievances are not admissible as business records, they are admissible for the purpose of showing that Defendants Amato and Franko had notice that inmates in MCJ were complaining that they were not receiving enough food and that the food lacked adequate nutrition. Assuming that Plaintiffs are able to lay a foundation showing Defendant Amato or Franko was aware of the grievances,³ they would not be hearsay if they were admitted to show that Defendants had notice of complaints regarding the food being provided at MCJ. “To be sure, an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger, is not hearsay.” George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990). Although Defendants argue that “plaintiffs’ inherent purpose in introducing this evidence is for the truth of the statements included in the grievances,” (Dkt. No. 216, at 11), the Court, if requested, will issue a limiting instruction at the time of introduction, and at the end of the case, cautioning the jury to consider the grievances only on the issue of notice, and not for the truth of the allegations in the grievances.

-CM

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