file notes about employees' performance was a regularly conducted
business practice or that such evaluations were recorded as a
matter of regular practice. The fact that Mr. Leavell made such
notes with respect to the plaintiffs in particular does not help.
The memoranda were "not created with the kind of regularity or
routine which gives business records their inherent reliability.
. . . [but] obviously to memorialize [something] . . . that Mr.
[Leavell] may have been concerned could have some litigation
potential to it." Pierce v. Atchison, Topeka, and Santa Fe Ry.
Co., 110 F.3d 431, 444 (7th Cir. 1997).
Neither do the memoranda have indicia of reliability.
Reliability may be established by such factors as systematic
checking, habits of precision on the part of the keeper, reliance
by others on the records, or a duty to record accurately.
Weinstein's Federal Evidence § 803.11, at 803-66 (1999). Mr
Leavell's notes were not systematically checked by anyone else;
nothing indicates that he has any special habits of precision or
that anyone else relied on these records; and he was under no
duty to record that information accurately. Indeed, the
circumstances suggest that he was building a case against the
plaintiffs and so may have had an incentive to be less than
Second, City Colleges seeks to admit letters from an external
auditor, Peat Marwick, LLP, including a draft letter dated June
13, 1995, which states that the City Colleges should recruit
"qualified staff" for the internal audit department where Messrs.
Jones and Skaletsky were employed, and a similar final letter
dated November 30, 1995, which recommends that the City Colleges
"hire and maintain qualified people to perform internal audit
functions. . . ." This evidence is supposed to show that the
plaintiffs were fired because of poor job performance and not
age. The draft letter of June 13 is unsigned. The final letter of
November 30 is signed in manuscript with the name of the firm,
"KPMG Peat Marwick LLP." These letters are inadmissable as
irrelevant, since the general recommendation to hire qualified
auditors (certainly good advice) does not imply that Messrs.
Jones and Skaletsky were not qualified.
Moreover, the letters, even if they had been relevant, would
not come in under the business records exception. They are
unsigned and nothing about them indicates that they were made by
or based on information from someone with knowledge. Moreover,
they are not City College's business records but are based on
outsider testimony which cannot be admitted under Rule 803(6),
but must fall within another exception to hearsay rule to be
admissible. See Wilson v. Zapata Off-Shore Company,
939 F.2d 260, 271 (5th Cir. 1991). Several circuits have held that Rule
803(6) allows business records produced by outsiders to be
admitted "if witnesses testify that the records are integrated
into a company's records and relied upon in its day to day
operations," Matter of Ollag Constr. Equip. Corp., 665 F.2d 43,
46 (2d Cir. 1981); accord Air Land Forwarders, Inc. v. United
States, 172 F.3d 1338, 1343 (Fed. Cir. 1999); United States v.
Childs, 5 F.3d 1328, 1334 (9th Cir. 1993), but City Colleges
does not offer witnesses that the Peat Marwick reports were so
integrated and relied upon.
Third, City Colleges wishes to admit into evidence a memorandum
dated February 7, 1995 in which a Richard Maday says, "[a]s per
your request, I am confirming my impressions of Robert Skaletsky
during his visit to Truman College on February 1, and 2[sic],
1992." The memorandum then reports various unflattering things
about Mr. Skaletsky's attitude, which was apparently hostile to
Mr. Maday, although the memorandum does not appear to reflect on
Mr. Skaletsky's competence. It is therefore irrelevant. It is
also not a business record, since there is no indication that
spying on the employees of other departments was one of Mr.
Maday's regularly conducted business activities the results of
which he recorded as part of his regular practice, nor does the
statement of his "impressions" bear any particular indicia of
Finally, City Colleges seeks to have admitted into evidence the
termination letter that a subsequent employer sent to Mr. Jones,
dated September 16, 1996, because it states that "[t]he reason
for your dismissal is[:] unsatisfactory work performance." This
is hearsay within hearsay, since the letter is signed by Sandra
Ragan, who is evidently with the personnel office, and not by his
supervisor. The portion stating the reason for termination does
not qualify under the business records exception. Personnel
records giving dates of hire and separation, including the fact
of termination, would indeed qualify, since enterprises keep such
records in the course of their regular activities, and they have
every incentive to make sure that the information is reliable.
But the stated reasons for termination are not necessarily kept
in the course of regular business activities, and are likely to
be self-serving, since only a completely insane or truly heroic
personnel officer would record a blatantly illegal reason for
termination even if it was the true reason. How often does one
see a letter reading, "The reason for your termination is: you
are too old"? Such statements therefore normally lack the indicia
of reliability necessary for admissibility under the business
Defendants's motions in limine 1, 2, 4 and 10 are DENIED as
moot, as discussed at pretrial conference. Motions 3, 5, and 6
are DENIED. Motion 7 is GRANTED, to the extent that the material
involved is hearsay, except for material that comes in under some
exception or exclusion. Motions 8 and 9 are DENIED. Motion 11 is
GRANTED. Motions 12, 13, and 14 are DENIED. Motion 15 is GRANTED.
Motions 16 and 17 are DENIED. Defendant's motion for discovery
sanctions are DENIED as moot in view of the motion in limine.
Plaintiffs motion in limine is GRANTED. The purported "business
records" are excluded.