Disputes over authenticity of trial exhibits have increased in recent years. In response, the Texas Supreme Court has amended the self-authentication rule of the Texas Rules of Evidence, making it easier to authenticate business records. In fact, they even provided a form affidavit, so you can throw away that Post-It note with the business record predicate, provided you send the affidavit or unsworn declaration more than 14 days from trial.
RULE 902. SELF-AUTHENTICATION
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
. . .
(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).
(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.
(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:
- I am the custodian of records of _______ [or] I am an employee or owner of ___________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.
- Attached are ____ pages of records. These are the original records or the exact duplicates of original records.
- Based on the regular practices of ________, the records were:
a. made at or near the time of each act, event, condition, opinion, or diagnosis set forth in the records;
b. made by, or from information transmitted by, persons with knowledge of the matters set forth; and
c. kept in the course of regularly conducted business activity.
- It was the regular practice of the business activity to make the records.
The comment to the rule change is particularly important. It explicitly states that unsworn declarations are sufficient under the self-authentication rule, and that you can serve the affidavit or unsworn declaration by email.
Comment to 2014 Change: The word “affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001. A record and affidavit may be served electronically, including by email. TEX. R. CIV. P. 21a. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001 and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity of services or medical expenses.
While undoubtedly authentication disputes will still arise (I printed it from the internet, so it must be authentic), this rule has the potential to eliminate needless authentication disputes at trial, much to the delight of jurors subjected to white-noise machines and frequent unexplained breaks.