Back to Gumbo Basics: The Least Yall Could Do is Lay the Foundation(s)

No visit to New Orleans is complete without a bowl of gumbo. There are many preferences, of course, but every great bowl of gumbo has the same foundation. It is of no consequence whether you prefer Dooky Chase’s savory, porky gumbo and how it melts across your taste buds; a bowl from Galatoire’s, beautifully hued and swimming with a troupe of fresh shrimp; or the seafood okra variant from Gumbo Shop packed with flavor and paired best with its homemade hot sauce. There is no rule that says gumbo must turn out a certain way. But gumbo isn’t gumbo unless certain traditional, unquestioned requirements are met: a roux, seasoning, veggies, meat, rice and a bottle of hot sauce.

Just as a dish is not gumbo without the required culinary foundation, corporate documents should not be deemed admissible without the proper foundation. For example, we see some plaintiff lawyers increasingly seeking to admit corporate documents into evidence without a sponsoring witness. Bland arguments and unpalatable interpretations of the Federal Rules of Evidence suggest that the Rules of Evidence do not expressly require a sponsoring witness. Adding a pinch of salt and a sprinkle of pepper to this ill-concocted pot, opposing counsel have asserted that the hearsay rules remedy any doubts regarding the documents’ admissibility.

While there is some taste to the arguments, in many instances, the rules of evidence require the right foundation.

In the Hernia Mesh litigation,[1] plaintiffs sought a blanket ruling that they did not need a sponsoring witness in order to introduce and publish certain documentary evidence during trial.[2] The court held that although a sponsoring witness is not always required, the door is not open for evidence that is inadmissible on other grounds:

Although the courts often speak of laying “the foundation” in the singular, in truth the proponent may have to lay multiple foundations. Thus, a single exhibit such as a letter might require authentication, best evidence, and hearsay foundation.[3]

The Adams Test

In Adams v. United States,[4] the plaintiffs moved to admit 13 documents without laying a foundation from a sponsoring witness. The defense countered that admission en masse without any explanatory context to the jury would be both misleading and prejudicial. The Court agreed with the defense:

[w]hile Rule 903 dispenses with the requirement of a ‘subscribing witness,’ Rules 106, 403, and 611 would require that the documents be offered through a witness if to do otherwise would cause the jury to be misled, the parties to suffer undue prejudice, or result in some unfairness to the defendants.[5]

The Adams Court identified the framework to be used to evaluate the admissibility of each proposed document.

[I]t is critical for the Court to examine each of the 13 documents to determine whether (1) they are authentic under Rule 901, (2) the excerpts to be read are either non-hearsay under Rule 801, or, if hearsay, that an exception applies under Rule 803, (3) that the excerpts are relevant under Rule 401; (4) that the declarant has the requisite personal knowledge under Rule 602, (5) that the probative value of the document is not substantially outweighed by the danger of unfair prejudice under Rule 403, and (6) that the presentation of the exhibit without a subscribing witness will not result in some unfairness to the parties or interfere with the ascertainment of the truth under Rules 106 and 611.[6]

Essentially, the Adams Test for admitting corporate documents into evidence calls for the proponent to:

  1. Authenticate the document,
  2. Indicate what portion(s) will be read,
  3. Establish a hearsay exclusion or exception,
  4. Establish that the declarant had personal knowledge,
  5. Establish that the document is relevant, and
  6. Establish that the document is not misleading or unduly prejudicial.

So, what type of documents should be excluded under the Adams Test? Here are some examples:

  • When an employee is not speaking within the scope of his or her employment.
  • When an employee is repeating the work of others.
  • When the document contains accounts from multiple people.
  • When the document lacks signatures and/or dates.

Add a Dash of Daubert

In pharmaceutical and similarly complex fields of litigation, courts would benefit from also reviewing documents for compliance with Daubert before their admission without a sponsoring witness.

In an effort to camouflage a lack of testing or other scientific support, some plaintiff lawyers may try to comb through company documents looking for any discussion of disputes or alternative suggestions in the development of the products. They will then have their experts opine that these disputes/suggestions are not only evidence that the devices are defective, but that the defendant “knew” of the alleged defect.

However, company documents that themselves are insufficient to pass Daubert scrutiny cannot provide a reliable basis for expert testimony.[7] If Daubert–noncompliant documents cannot provide a reliable basis for expert testimony, then the same and similar documents likely lack sufficient reliability to be published and introduced as evidence without a sponsoring witness.

The purpose of screening documents for admissibility is to ensure jurors consider only proper, reliable evidence. Courts must scrutinize the foundation of proffered evidence to determine whether it is sufficiently reliable. Evidence offered without a sponsoring witness to add context should invite even more scrutiny. Indeed, in complex litigation with a scientific flair, courts should require proponents to establish that the documents comply with Daubert and the Adams Test.

That the rules do not contain a specific provision requiring a sponsoring witness does not eliminate the other elements required for admission. The Adams Test provides a good recipe for evaluating evidence proffered without a sponsoring witness.

[1] Butler Snow represents defending parties in the Hernia Mesh litigation. This article is based strictly on analysis of reported court decisions and publicly available information.

[2] In re Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation, No. 1:17-md-2782-RWS, ECF 556 (N.D. Ga. April 21, 2020).

[3] 1 MCCORMICK ON EVIDENCE § 51 (8th ed.).

[4] Adams v. United States, No. 03-0049-E-BLW, ECF No. 1234, Court’s Order Regarding Documents Offered Into Evidence Without a Supporting Witness (D. Idaho June 28, 2009) (explaining the framework used to determine whether to admit document without sponsoring witness).

[5] Id. at 1-2.

[6] Id. at 2.

[7] See generally Finn v. G. D. Searle & Co., 677 P.2d 1147, 1153 (Cal. 1984) (“liability ought not to be imposed for failure to warn based on every piece of information in a manufacturer’s possession”); In re Mirena IUD Prods. Liab. Litig., 202 F. Supp. 3d 304, 324-27 (S.D.N.Y. 2016)  (plaintiffs could not establish causation solely through ambiguous internal documents in the absence of reliable expert testimony); Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 77 (S.D.N.Y. 2001) (insufficient that untested design was based on small modifications of a defendant’s patent); Soldo v. Sandoz Pharm. Corp., 244 F. Supp. 2d 434, 545 (W.D. Pa. 2003) (expert reliance on phrases picked from corporate documents does not satisfy causation); In re C.R. Bard, Inc. 948 F. Supp. 2d 589, 612 (S.D. W. Va. 2013) (excluding an expert’s opinions on product design because his opinions were “largely based on (1) his personal experiences and observations and (2) internal Bard documents); Willett v. Johnson & Johnson,465 F. Supp. 3d 895, 908-10 (S.D. Iowa 2020) (holding that references in company documents to an alternative design could not satisfy Daubert where the design had not been manufactured and had not been tested).