The New Year Marks New Changes Regarding the Admission of Records Produced by an Opposing Party

On August 28, 2018, a change to article 45 of the CPLR was enacted after being proposed by the Chief Administrative Judge and being recommended by the Advisory Committee on Civil Practice.  That change, involving the admission of opposing party documents, is set to go into effect on January 1, 2019. The new CPLR §4540(a) is designed to make the admission of documents created by an opposing party admissible without going through additional steps.

Currently, in order to admit medical records by the opposing party there are several different routes that may be taken.  First, the documents may be stipulated as admissible by the parties, pursuant to CPLR §2104. Additionally, the document may be admitted as a business record pursuant to CPLR §4518.  Admission under CPLR §4518 usually requires a statement by a witness at a deposition or trial. Lastly, a notice to admit served pursuant to CPLR §3123 could be used by having the opposing party “admit” the documents are true.

CPLR §4540(a) was enacted to streamline the process. The rule reads in its entirety:

Rule 4540-a: Presumption of authenticity based on a party’s production of material authored or otherwise created by the party. Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party.  Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic and shall not preclude any objection to admissibility.”

The rule not only allows the admission of evidence created by the opposing party, but it also shifts the burden of proving the lack of authenticity to the producing party. The general premise is that the producing party has already implicitly acknowledged the authenticity of the documents by producing them. Therefore, any additional requirements of authenticating the material would be a waste of the court’s time and resources. Instead, the new rule shifts the burden to the producing party to provide evidence of forgery, fraud, or some other defect in authenticity.

In their proposal, the Advisory Committee noted that CPLR §4540(a) would not preclude establishing authenticity by any other statutory or common law means as per CPLR 4543. Therefore, as of January 1, 2019, litigators will be able to choose the most beneficial route to authenticating documents produced by an opposing party.

To read the proposal of the Advisory Committee, click here.