DOJ-OGR-00005721.jpg

Case 1:20-cr-00330-PAE Document 390 Filed 10/29/21 Page9of11 from lawyers representing plaintiffs against Epstein. This one-off document is far from a reliable business record. There is simply no evidence to suggest that this document was created in the course of any business. Rather, the exhibit was specifically “prepared” in anticipation of litigation against Mr. Epstein and therefore is not a business record. Records prepared in anticipation of litigation are not made in the ordinary course of business. See Palmer v. Hoffman, 318 U.S. 109 (1943) (reports prepared for the purpose of litigation do not fall within business records exception to hearsay rule because they are not kept in the course of regularly conducted business); Timberlake Const. Co. v. U.S. Fidelity and Guar. Co., 71 F.3d 335, 342 (10th Cir.1995) (“It is well-established that one who prepares a document in anticipation of litigation is not acting in the regular course of business.”); United States v. Casoni, 950 F.2d 893, 911, n.10 (3d Cir.1991). Setting aside the fact that the document was prepared for a criminal purpose, to be admissible as a business record the proponent of the document must establish the source of the contested information, that is, (1) the author of the document had personal knowledge of the matters reported; (2) the information he reported was transmitted by another person who had personal knowledge, acting in the course of a regularly conducted activity; or (3) it was the author's regular practice to record information transmitted by persons who had personal knowledge. See Missimer v. Tiger Machine Co., No. 04-3443, 2005 WL 3968133, at *2 (E.D.Pa. Sept. 28, 2005). In addition, the proponent must establish the information was kept in the regular course of the author’s business, and it was the author’s regular practice to prepare such reports. See Fed. R. Evid. 803(6); United States v. Pelullo, 964 F.2d 193, 200 (3d Cir.1992) (for business record exception to apply, proponent must establish “(1) the declarant in the records had personal knowledge to make accurate statements; (2) the declarant recorded the statements DOJ-OGR-00005721