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Palisades Collection v. Kalal, 2009AP482, Dist IV, 2/4/2010

court of appeals decision

Appellate Procedure – Standard of Review – Evidence Admissibility

¶14     However, not all evidentiary rulings are discretionary. For example, if an evidentiary issue requires construction or application of a statute to a set of facts, a question of law is presented and our review is de novo. State v. Jensen, 2007 WI App 256, ¶9, 306 Wis. 2d 572, 743 N.W.2d 468. …

Evidence – Hearsay – Business Record Exception, § 908.03(6)

20      … Wis. Stat. § 908.03(6) does not require that the “custodian or other qualified witness” be the original owner of the records. However, under the plain language of this exception, being a present custodian of the records is not sufficient. The language is “as shown by the testimony of the custodian or other qualified witness.” The only reasonable reading of this language is that a testifying custodian must be qualified to testify that the records (1) were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) that this was done in the course of a regularly conducted activity.

¶21      In order to be qualified to testify on these two points, Oliphant must have personal knowledge of how the account statements were prepared and that they were prepared in the ordinary course of Chase’s business. …

¶22      It is true, as Palisades contends, that a custodian or other qualified witness does not need to be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of WIS. STAT. § 908.03(6). However, the witness must have personal knowledge of how the records were made so that the witness is qualified to testify that they were made “at or near the time [of the event] by, or from information transmitted by, a person with knowledge” and “in the course of a regularly conducted activity.” See WIS. STAT. § 908.03(6). In re Denslow, 104 B.R. 761 (E.D. Virginia, 1989), on which Palisades relies, does not dispense with the requirement that a qualified witness must have personal knowledge of how the records were prepared. Rather, it rejects the argument that the party advocating admissibility under the federal rule counterpart to § 908.03(6) is required to produce the person who made the record. Id. at 764-65.

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