Multistate Bar Examination Practice Question

The correct answer is that the report is likely admissible. Under Federal Rule of Evidence 803(6), a record is admissible as a business record if it was made at or near the time by someone with knowledge, kept in the course of a regularly conducted business activity, and it was the regular practice of that business to make the record. Here, the report was a standard form completed pursuant to a long-standing company policy for insurance and safety review, which are regular business activities. While records prepared solely in anticipation of litigation are typically inadmissible under the principle of Palmer v. Hoffman, reports that have a regular business purpose, such as for insurance or safety reviews, are often admissible even if litigation is also a possibility. The report is not automatically inadmissible just because it is self-serving or because it was prepared with an awareness that litigation might occur. Finally, the business records exception does not require the declarant (the driver) to be unavailable.