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McKinney v. Franklin County Illinois

United States District Court, S.D. Illinois

September 13, 2019

MARY MCKINNEY, as Administrator for the Estate of R.E., deceased Plaintiff,
v.
FRANKLIN COUNTY ILLINOIS, et al., Defendants.

          ORDER

          HON. REONA J. DALY, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion to Enforce the September 5, 2018 Stipulation of the Parties Regarding 803(6) “Record of Regularly Conducted Activity” Foundation for Documents Exchanged in Discovery (Doc. 236). Defendants filed a Joint Response (Doc. 240). As set forth below, Plaintiff's Motion is DENIED.

         Plaintiff seeks to enforce a stipulation by counsel for Defendants to the business records foundation of all documents produced in discovery. On September 4, 2018, Plaintiff's counsel sent an email to defense counsel asking, “Would you all agree to stipulate to the business records foundation for records produced in discovery so that we do not have to call records custodians at trial and/or get everything certified?” (Doc. 236-1 at 2). A proposed stipulation was attached to the email. Plaintiff's counsel indicated counsel for Defendants were free to suggest any changes they thought necessary (Id.). The proposed stipulation was as follows:

1. That documents, audio recordings, videos, photos and other tangible items produced by any party and exchanged in discovery in the case, including third party records obtained by any party in discovery and produced in discovery, are true and accurate copies of records of a regularly conducted activity (“business records”).
2. That copies of such documents may be used in lieu of the original of such documents.
3. That any objections to relevancy, more probative than prejudicial, cumulative or other substantive objections are preserved.

         (Doc. 236-2).

         On September 5, 2018, counsel Chris Kim replied to the email, “State of Illinois Defendants do not object to the proposed stipulation” (Doc. 236-1 at 2). Also, on September 5, 2018, counsel for the county Defendants replied stating he would so stipulate. Subsequently, the trial date was reset in the case and the stipulation was never finalized.

         On January 7, 2019, Plaintiff's counsel emailed all defense counsel suggesting the agreed to stipulation be set forth more specifically. Plaintiff's counsel acknowledged the previous proposed stipulation was circulated, but never finalized (Doc. 236-3 at 3). Plaintiff's counsel attached a copy of the new proposed stipulation and acknowledged, “it is somewhat broader than the previous one which I believe is to every parties benefit” (Id.). Further, Plaintiff's counsel indicated counsel for Defendants could respond with any proposed edits (Id.). The revised proposed stipulation was as follows:

         Pursuant to the Federal Rules of Civil Procedure Plaintiff and Defendants hereby stipulate to the following matters:

1. Unless otherwise noted herein, all documents, videos, photos, and other tangible items exchanged in discovery in the case at bar, including third-party records obtained by any party and produced in discovery, may be used in lieu of the originals of said documents, and foundation testimony is also waived; however, any objections to the contents of such documents, including objections to hearsay, relevancy, competency, and materiality, are reserved until the time of trial.
2. All documents, audio recordings, videos, photos and other tangible items produced by any party and exchanged in discovery in this case, which were kept in any of Defendants files (or the files of the defendants who are no longer in the case) are records of a regularly conducted activity which meet all of the requirements of FRE 803(6) and/or FRE 806(8) such that they are exceptions to the hearsay rule. Any objections to relevancy, more prejudicial than probative or other substantive objections are preserved.
3. The healthcare and mental health records of R.E. exchanged in discovery in this case are true and accurate copies of records of a regularly conducted activity which meet all of the requirements of FRE 803(6) such that they are exceptions to the hearsay doctrine. They also are exceptions to the hearsay rule under FRE 803(3) (statements regarding then existing mental of physical condition) and 803(4) (statements made for medical treatment). Any objections to relevancy, more probative than prejudicial or other substantive objections are preserved.
4. All documents exchanged in discovery which were kept by any business, organization, occupation or calling are records of a regularly conducted activity meet all of the requirements of FRE 803(6) such that they are exceptions to the hearsay rules. Any objections to relevancy, more ...

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