California's Secondary Evidence Rule: Helpful, Yes. But Not an End Run.

Must documents always be produced to proof their contents? What if the documents are lost or missing? California's secondary evidence rule (Cal. Evid. Code §§ 1521 - 1523) provides a commonsense approach that begins with a simple general rule: "The content of a writing may be proved by otherwise admissible secondary evidence." Cal. Evid. Code § 1521(a). But this general rule of admissibility does not apply if the court finds either (1) a genuine dispute exists concerning material terms of the writing and justice requires its exclusion, or (2) admission of the secondary evidence would be unfair. Id, §1521(a)(1), (2).

Put another way, if documents are not available, a witness may testify about the documents' content so long as (1) the testimony is "otherwise admissible," and (2) allowing the testimony is not unfair. Even simpler, the secondary evidence rule cannot be used as an end-run around the rules of evidence. 

For example, if a party's document containing hearsay might be admissible as business records, the proponent of the document bears the burden of establishing the business records exception. I've written about the rule and application of the business records exception here and here, and made a video explaining it here. The foundational requirements are the following: 1271. Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business; 

(b) The writing was made at or near the time of the act, condition, or event; 

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and 

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Cal. Evid. Code § 1271. 

 In a recent case, Chambers v. Crown Asset Management, LLC, 2021 WL 5279409 (October 21, 2021), the Court reiterates the importance of providing "otherwise admissible" evidence when trying to prove the contents of a writing through secondary evidence. The case was initially filed by plaintiff Pamela Chambers as a putative class action wherein Ms. Chambers alleged that defendant Crown Asset Management ("Crown") violated the California Fair Debt Buying Practices Act ("CFDBPA"). Crown move to compel arbitration, and it relied on an employee declaration from Ms. Chamber's original creditor, Synchrony Bank ("Synchrony"). 

Crown sought to show that (1) Ms. Chambers received an arbitration agreement when she opened her credit card (and again when she received a replacement card a few years later), and (2) the agreement allowed Ms. Chambers to opt out of the agreement (and that Ms. Chambers failed to do so). Id.  at *1. To make these showings, Crown relied on an affidavit from a Synchrony employee who attested to the following:

1. She had "personal knowledge of the business records of Synchrony" and was "a qualified person authorized to declare and certify on behalf of Synchrony."
2. Her "... responsibilities include[d] regularly accessing Synchrony's cardholder records and helping to maintain and compile histories of credit card accounts[, and that she] ... also regularly review[ed] and analyze[d] account records and transaction histories, including communications to and from cardholders."
3. "Synchrony's records show[ed] that ... the card and a copy of the [arbitration agreement] were mailed to Pam Chambers at the address of record on the Account.... [and that] Synchrony ha[d] no record that the card or the Account Agreement were returned as undeliverable."  
4. Regarding the opt-out provision, "As part of Synchrony's regular activities in the ordinary course of business, Synchrony maintains a record of any correspondence it receives from its cardholders, including requests to reject or opt out of an arbitration provision. I have reviewed Synchrony's records, and I have found no record of a notice from Pam Chambers exercising her right to reject the arbitration provision."

Id. *1 - 2. 

While the declaration attached various billing statements, it did not attach any documentation regarding the supposed mailing of the arbitration agreement. Id. at *2. 

Ms. Chambers opposed Crown's motion to compel arbitration on the ground that "... Crown had not shown she received the account agreement [with the arbitration provision] and failed to object." Id. Ms. Chambers objected to the above-affidavit, in particular objecting to the statement that "Synchrony's records show[ed] that ... the card and a copy of the [arbitration agreement] were mailed to Pam Chambers...." The trial court sustained Ms. Chambers' objections and denied the motion. With respect to the claim that the arbitration agreement was mailed, the court stated the following: 

[The Synchrony employee] relie[d] solely on what "Synchrony's records show[ed]" to prove Synchrony mailed the arbitration agreement to Chambers. [The employee] does not describe what those records looked like (e.g., whether they were electronic or paper records) and does not testify regarding their reliability or why she is testifying as to their contents of those records rather than attaching the records to her affidavit. Further, [the employee] does not testify she has any personal knowledge regarding the mailing of the arbitration agreement outside what the "records show." Anderson provides no information regarding the regular business practices or procedures of Synchrony ... with regard to the mailing of credit card agreements. 

Id.  

Crown appealed the trial court's ruling, and the Court of Appeal affirmed. 

Crown first argued that (1) the Synchrony affidavit was admissible under the secondary evidence rule (Cal. Evid. Code §§ 1521 - 1523), and (2) the underlying Synchrony documents qualified as business records (§ 1271). 

In its analysis, the Court discussed the relationship between the secondary evidence rule and the business records exception to the hearsay rule. Namely, that the secondary evidence rule cannot be used as a workaround to admit otherwise inadmissible evidence because the rule only "... permits the introduction of 'otherwise admissible secondary evidence' to prove the contents of a writing." Id. at *6, citing Pajaro Valley Water Management Agency v. McGrath, 128 Cal. App. 4th 1093, 1108 (2005). 

Applying that principle to the facts, the Crown Court explained that the employee's "affidavit expressly referenced 'Synchrony records' as the basis for her statement that the credit card account had been mailed to Chambers. In order for [the employee's] statement to be admissible, the underlying Synchrony records would have to be admissible (among other conditions)." Id. at *6. Therefore, to determine the admissibility of those records (or the statements about them, under a secondary evidence analysis), Crown had the burden to establish the business records exception. 

Turning to the business records exception, the Court acknowledged that the employee attested that she "regularly review[ed] and analyse[d] account records and transaction histories, including to and from cardholders." Id. However, the employee "[did] not say anything about their preparation. Nor [did] she describe the specific 'Synchrony records' she relied upon to state that Chambers had been mailed the account agreement." Id. Accordingly, "[t]he trial court could reasonably find that [the employee] had not shown those specific records—whatever they were—were made in the regular course of Sychrony's business." Id. In addition, "[i]nformation about the sources of information and the method and time of preparation of the records, including whether they were prepared at or near the time of alleged mailing, is completely absent from [the employee's] affidavit." Id. 

Chambers v. Crown is a helpful example that illustrates the relationship among the various rules of evidence. While the secondary evidence gives parties the flexibility to prove the contents of an absent writing, it does not permit them to sidestep other requirements of admissibility.  

David Sugden is a shareholder at Call & Jensen in Newport Beach, California.