Certification of Authenticity for Records of a Regularly Conducted Activity
(F.R.E. 902(11) and F.R.E. 902(12)) (Federal)

Summary

This Certification of Authenticity for Records of a Regularly Conducted Activity (F.R.E. 902(11) and F.R.E. 902(12)) (Federal) is a standard form that attorneys can use to self-authenticate evidence made and kept as part of a regularly conducted activity. This template tracks Rule 902(11) and 902(12) of the Federal Rules of Evidence and contains practical guidance and drafting notes. Rules 902(11) and 902(12) are critical tools allowing you to authenticate evidence of a regularly conducted activity—such as business records—by way of a certification of a qualified witness rather than through live testimony. Rule 902(11) applies to domestic records, while Rule 902(12) applies to foreign records. See F.R.E. 902(11); F.R.E. 902(12). Rule 902(12) contains the same requirements as 902(11), with one modification: the declarant must sign the certification in a manner that, if falsely made, would subject the declarant to a criminal penalty in the county where he or she signs the certification. See F.R.E. 902(12). For a record to be self-authenticating under Rules 902(11) and 902(12), your proffered evidence must meet the requirements of Rule 803(6). Under that rule, the court will not exclude a record of an act, event, condition, opinion, or diagnosis as hearsay if: • The record was made at or near the time by, or from information transmitted by, someone with knowledge • The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling (whether or not for profit) • Making the record was a regular practice of that activity • You establish the above criteria through the testimony of the custodian or another qualified witness or through a certification that complies with Rules 902(11) or 902(12) –and– • Your adversary does not show that the information's source or the method or circumstances of preparation indicate a lack of trustworthiness See F.R.E. 803(6); F.R.E. 902(11); F.R.E. 902(12). Your certification must contain information that would sufficiently establish the record's authenticity as if it was offered through witness testimony at trial. See F.R.E. 902 Advisory Committee notes to 2000 and 2017 amendments. The burden of challenging authenticity then shifts to your adversary. However, a certification under Rules 902(11) and 902(12) only establishes that the records are authentic. See F.R.E. 902 Advisory Committee notes to 2000 and 2017 amendments. Your adversary still may object to the records' admissibility on other evidentiary grounds, including hearsay and relevance. See F.R.E. 902 Advisory Committee notes to 2000 and 2017 amendments. Before offering your evidence at trial or at a hearing, you must: • Provide your adversary with reasonable written notice of your intent to offer the evidence –and– • Make the records and certification available for inspection so that your adversary has a fair opportunity to challenge them See F.R.E. 803(6)(A)–(C), 902(11). For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For more information about document discovery in federal court, see Written and Document Discovery Resource Kit (Federal), Document Review and Production Resource Kit (Federal), Document Requests: Drafting and Serving RFPs (Federal), and Document Requests: Responding to RFPs (Federal). For relevant templates, see Requests for Production of Documents (RFPs) (Plaintiff to Defendant) (Federal)Requests for Production of Documents (RFPs) (Plaintiff to Defendant) (Federal) and Objections and Responses to Requests for Production of Documents (Defendant to Plaintiff) (Federal). For related checklists, see E-discovery Project Management Checklist (Federal) and Preserving Evidence Checklist (Federal).