4.2.4.1.2 Documents generated only for the litigation

Documents created for the litigation are not business records and the hearsay rule prevents their introduction.¹²⁰ The records are not contemporaneous—that is, they were not created at the same time as the occurrence of the event that the record is documenting. The records are not admissible if they were created years later, either by the original creditor or a debt buyer. The record must be created shortly after the event that it records, not a year later.¹²¹

Business records also must be kept in the regular course of a business activity, as part of a regular practice of conducting that activity. This is another reason that documents created for use in litigation do not qualify as business records.¹²² The same is even the case when the records are produced by the originating creditor.¹²³ The records must have been created, not for the purposes of litigation, but as part of the creditor’s regular business of extending credit and receiving payments.¹²⁴

In particular, documents purporting to be business records may have been created for purposes of litigation, and it is thus important to be able to identify this practice. Creditors will rarely keep copies of billing statements but will instead generate for the litigation a document similar to the original monthly statement. But this document may, in fact, have many differences from the original, and these differences can show that the record does not meet the requirement of contemporaneousness.

Look to see if the new document has the consumer’s current address (instead of the address at which the consumer was residing at the time of the original record) or contains other discrepancies that are apparent on the face of the duplicate. That a record refers to the parties as “plaintiff” and “defendant” constitutes good evidence that a record was created for purposes of litigation.¹²⁵ The record’s date in relation to the litigation is also a good clue.¹²⁶ Thus, a record of assignment created a year after an assignment and only a few months before litigation indicates that the record was created in anticipation of litigation. Moreover, a careful cross-examination or deposition of the affiant introducing the record will generally show that the document is not the original but was produced in anticipation of the litigation.

On the other hand, not every document used in litigation was prepared solely for the purpose of litigation. If the information was previously produced as a business record, it may avoid being considered solely for litigation purposes.¹²⁷