Record Reminder

Hager v. Brinker Texas, Inc. reminds that the business-records exception to the hearsay rule has significant limitations. The Fifth Circuit summarized an earlier case, in a similar dispute about the admissibility of the employer’s records, as holding:

“[A]n employer’s human resource managers’ reports and letters tracing steps in investigating complaints of sexual harassment against an employee leading to discharge were admissible business records; but it also recognized that such reports would be ‘inadmissible where their “primary utility is for litigation.”‘”

Based on that rule, the Court held:

[T]he Venable declaration and Exhibit B were prepared immediately after the threat of Sharnez’s litigation loomed as Brinker knew that Sharnez complained of racial discrimination and mentioned contacting her lawyer. Venable’s conclusory assertion that the declaration and Exhibit B were made in the regular course of Brinker’s business, with no further explanation about whether it was company procedure to make similar records, does not frustrate this conclusion.  Quite the opposite, Venable admitted that he had never before conducted an investigation into a guest complaint of racial discrimination, further undercutting any claim that the declaration was made in the “regular course” of business. 

No. 21-20235 (May 22, 2024).