|
Good record keeping practices essential when security contractors go to
court
By Carlos Peniche
27-YEAR DOUBLE BOARD CERTIFIED LITIGATION
ATTORNEY
Having a systematic and organized collection of business records, paper work and documentation which demonstrate that the person or business in question is in fact engaged in regular business activities which establish the trustworthiness and reliability of those records should prepare any security contractor to bring or defend a lawsuit. Most of my readers think about being sued, but remember, if you need to file suit to collect on a debt for services rendered, it helps to have good records to prove those services were rendered.
Think about the importance of business records to our economy. Business records come in all shapes and sizes. And they are no longer just paper. Electronic data, emails, and even information on websites can constitute �business records�. The security profession generates numerous records which should be placed in folders with labels on them (by client, by site, by year would be enough for most small contractors). Examples of security contractor records would be daily activity reports, incident reports, time cards, sign in/sign out sheets, dispatch logs, post orders, contracts, invoices, training records of attendance, employment applications and general correspondence/emails to and from clients/customers.
Texas Rule of Evidence 803(6) contains an exception to the �hearsay� objection with regard to business records and defines them as follows:
�(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. �Business� as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.�
Let�s break it down:
a. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses;
b. made at or near the time;
c. by, or from information transmitted by, a person with knowledge;
d. if kept in the course of a regularly conducted business activity;
e. if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation;
f. all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10);
g. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
In addition to proving something happened by virtue of the maintenance of business records kept in the ordinary course of business, the absence of a record can be used to show that something DID NOT HAPPEN.
Texas Rule of Evidence 803(7) explains how the absence of a record can be used as proof as follows:
�(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.�
Carlos Peniche is a 27 year, double board certified (Personal Injury Trial Law and Civil Trial Law, Texas Board of Legal Specialization) litigation attorney who has represented security guard contractors, private investigators, alarm companies and other security professionals in both litigation and transactional matters. He is the founder of Peniche, Dominguez & Rojas, PLLC (Houston, Texas). He may be contacted at 713-222-7444, by fax at 713-583-2044 or by e-mail at
[email protected].
|
