business-recordsThe Massachusetts Supreme Judicial Court says no, at least not when it comes to excluding business records on which an expert witness relied.

Back in 2001, a wage and hourly class action suit was filed by hourly employees against a giant retailer in Massachusetts. The lawsuit charged the retailer with failing to pay certain employees for time that they had worked and denying or cutting short meal and other breaks that the employees were entitled to. The employees ended up with a record-breaking $40 million settlement in 2009.


The defendants engaged an employment expert witness who used the retailer’s own records to show that there was a problem with how the defendant was treating and compensating its employees. Wal-Mart filed a motion asking the judge to exclude the plaintiff’s expert witness testimony on the grounds that the expert was relying on the retailer’s business records – which the defendant itself claimed were unreliable!

The judge agreed with the retailer, and disallowed the expert’s testimony.

The plaintiffs appealed to the Massachusetts Supreme Judicial Court, which overruled the judge and permitted the expert’s testimony. In its ruling the court said

In excluding even the portion of the plaintiff’s report and testimony that consisted of counting data found in [the retailer’s] own business records, the motion judge acted not on the basis of any challenge to [defendant’s expert’s] methodology, but essentially on his view that the records themselves were insufficiently reliable. This was error… Business records have a special place in our law of evidence…”Reliability is presumed because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business.”

There are rules for determining the admissibility of expert testimony in federal courts, known as the “Daubert standard” after the court case Daubert v. Merrell Dow Pharmaceuticals where the standard was laid out. In this case, there were no “Daubert issues.” The expert acted properly in relying on Wal-Mart’s business records. In essence, the courts are saying that if a business’s records are reliable enough to be used to run its business, they are reliable enough to be used in a court of law.

Source: http://www.nytimes.com/2009/12/04/business/04settle.html?_r=0