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ZENITH RADIO CORP. v. MATSUSHITA ELEC. INDUS. CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 29, 1980

ZENITH RADIO CORPORATION, Plaintiff
v.
MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al. Defendants; NATIONAL UNION ELECTRIC CORPORATION, Plaintiff v. MATSUSHITA ELECTRIC INDUSTRIAL CO. LTD., et al. Defendants; IN RE: JAPANESE ELECTRONIC PRODUCTS ANTITRUST LITIGATION [PART TWO OF TWO]

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, J.

PRETRIAL ORDER NO. 295

 (Admissibility of Materials Relating to Activities in Japan) $ TIII. The Yajima Diaries - DSS 48-50

 A. Introduction

 The Yajima diaries, DSS 48-50, *fn96" / are three notebooks which the Japanese Fair Trade Commission ("JFTC") seized during the course of its investigation in the "Six Company Case." Plaintiffs contend that the notebooks were authored by a Toshiba official named Seiichi Yajima, who during 1965 and 1966, the period covered by the diaries, attended on Toshiba's behalf meetings of the so called "Tenth Day Group," one of a number of groups allegedly engaged in price fixing activities within Japan. The diaries were marked as exhibits during the course of the "Six Company Case." Toshiba Corporation produced these notebooks to plaintiffs during the summer of 1972 in response to a Request for the Production of Documents which had been served by plaintiff NUE at the outset of the litigation and which called for all documents relating to the Six Company Case. The notebooks were designated with document identification numbers TJ4514-4593; TJ4598-4631; and TJ4646-4660, respectively. *fn97"

 Plaintiffs offer the diaries in evidence against all the defendants in this action. More specifically, plaintiffs offer these diaries as business records under F.R.E. 803(6), as admissions of Toshiba Corporation under F.R.E. 801(d)(2), as a declaration against the interest of Mr. Yajima under F.R.E. 804(b)(3) and as admissible under F.R.E. 804(b)(5), one of the residual hearsay exceptions.Plaintiffs overriding proffer is that the diaries are an authentic account of what took place at the meetings of the Tenth Day Group and other groups mentioned therein.

 Our modus procedendi in dealing with these diaries shall be first to set forth the plaintiffs' and then the defendants' contentions as to matters of foundation or qualification, i.e. we shall set forth the factual and to some extent the legal basis for the parties' contentions that the proffered documents are (or are not) authenticated under F.R.E. 901 and that they are (or are not) admissible under one of the exceptions to the hearsay rules. This initial summary is essentially complete vis a vis the parties' contentions on authentication and business record status; as to the status of the diaries as admissions of a party-opponent, as statements against interest, and under the residual hearsay exceptions, we shall supplement the statement of contentions in the course of our later discussion. While this recitation of contentions will sometimes be lengthy, its fullness will facilitate our application of legal principles to the challenged documents.We shall also follow this modus procedendi in connection with the other documents which are taken up in subsequent segments of this opinion.

 B. Plaintiffs' Foundation For Authentication and Admissibility Under One of the Exceptions to the Hearsay Rules

 (1) The diaries are specifically cited, indeed incorporated by reference, in Toshiba's answers to interrogatory numbers 8 and 42-44 to NUE's second set of interrogatories to defendants. In plaintiffs' submission, by this reference, Toshiba has, in effect, conceded authentication, business records status, and other necessary foundation for the diaries.

 (2) The three diaries were lawfully seized by the JFTC from Toshiba's offices and turned over to the JFTC by Mr. Kono, then the manager of the TV division. Upon their return, Toshiba made copies of the diaries and produced them to the plaintiffs.

 (3) One of the diaries, DSS-48, contains the Toshiba logo in Japanese and English at the top of the page.

 (4) During the Six Company Case Mr. Yajima gave to the JFTC investigators four protocols (DSS-75, DSS-76, DSS-77, and DSS-78) during which Mr. Yajima identified the diaries. The protocols, which bear a seal, have a recognized legal status in Japan.

 (5) During the course of his formal testimony before the JFTC, Mr. Yajima identified the diaries, testified to certain entries, and said that they were accurate and reflected meetings of the six defendants.

 (6) Yajima's protocols and testimony also include statements that show that he was present at the meetings he recorded in his diary.

 (7) The notebooks appear in the JFTC "investigator's list of evidence" (DSS-93) which plaintiffs claim is an official record of the JFTC.

 (8) Testimony of defendants' other employees at the JFTC hearing and statements by defendants' other employees in their protocols referred to one of Yajima's notebooks to confirm what occurred a meeting.

 (9) Mr. Kamakura's protocol makes reference to Yajima's presence at the meetings.

 (10) Mr. Yajima allegedly reported to his superiors at Toshiba after returning from certain meetings, passing on information on which they relied.

 (11) The diary is on its face a business record; i.e. it pertains purely to business matters which are of importance to Toshiba, and it looks and reads like a business record (the "res ipsa loquitur" contention).

 (12) Yajima's obligation to attend meetings and to make reports to Narita suggest that the information that he entered in the diaries was maintained by him as his regular practice; moreover, the entries (about the Tenth Day meetings) occur at fairly regular intervals.

 (13) The secretary company of the Tenth Day Group meeting would take down information for production, shipment and inventory, and since Yajima testified that Toshiba was the secretary company from March 1966 to June 1966, when Yajima was recording Tenth Day Group information, he was acting on behalf of the Group and his own company.

 (14) Entries were made periodically relating to regular subject matters. They covered basically the same type of information month after month. These topics were continually discussed, and it was part of the practice at these meetings and part of Yajima's practice to record this type of information.

 (15) When Yajima was shown the diary during the taking of the JFTC protocol, Yajima said "This notebook is mine and what was written in it deals with the events of this year and was written on the spot."

 C. Defendants' Response

 (1) There is no testimony on the record of this case by a "custodian or other qualified witness," F.R.E. 803(6), or in fact by anyone authenticating or establishing the foundation required by the admission of any of these diaries into evidence. Indeed, plaintiffs took no deposition of any person who (i) had knowledge of the manner in which the notebooks were kept and (ii) could confirm the contents of the notebooks. Rather, plaintiffs rely for foundation completely upon their counsel's presentation to the court.

 (2) The Toshiba logo appears on only one of the diaries (DSS 48), and in any event, the fact that Toshiba stationery was used is of no significance.

 (3) There are time gaps in the notebooks: DSS 48 refers to November 1965 to December 1965; DSS 49 refers to the period January 1965 to June 1965; DSS 50 refers to the period January 1966 to November 1966. There is no notebook for the period July through October 1965. *fn98"

 (4) The "Yajima Protocols" cited by plaintiffs as places where Mr. Yajima identified the diaries are simply brief passing references to only two of the diaries which, in fact, do not establish that the diaries are admissible under any of the exceptions to the hearsay rules.

 (5) The Yajima testimony also does not establish the foundation for the admission of the diaries into evidence. Only one of the diaries is referred to during Mr. Yajima's testimony and only in passing references which do not establish the foundation for the admissibility of the documents.

 (6) Toshiba's interrogatory answers do not establish the necessary foundation for the admissibility of the diaries, since the diaries were produced in response to a Request for the Production of Documents, not as answers to Interrogatories. At all events, the interrogatories did not request information relating to the substance of the meetings or the necessary foundation for the admissibility of the diaries. Moreover, Toshiba, in its interrogatory answers, specifically disclaimed any knowledge concerning the accuracy of the Yajima diaries or concerning what took place at any of the meetings of the groups about which the interrogatories inquired. See Toshiba's Answers to Interrogatories 8, 42, 43, and 44 of Plaintiff's [NUE] Interrogatories Set No. 2.

 (7) The testimony and protocols of Messrs. Adachi, Narita, Tsurata, and Kamakura also do not establish the foundation for the admissibility of the diaries since these references to the diaries do not establish any of the requirements of any of the exceptions to the hearsay rules, and are merely passing references to diaries which were being used merely to refresh the recollection of the witness.

 (8) While the protocols and testimony contain some statements to the effect that Mr. Yajima reported to his superiors after attending meetings, there is nothing in the record establishing that he utilized his diary for this purpose. Further, there is nothing in the record of this case establishing that Mr. Yajima was under a business duty to keep his diary; nor is there anything in the record of this case to show that Mr. Yajima systematically checked his diary or that it was his continuous habit to keep the diary.

 (9) The diaries themselves are a "hodge pidge" of notes which are pointless without the testimony of some person who was present at the meetings. One cannot even tell with any certainty where accounts of meetings begin and end; whether the accounts are what the author thought or surmised, or what someone else said, and if so, who said it.Further, there are at least 28 separate entries which the translators noted as "illegible."

 (10) The diaries contain double and triple hearsay, and because of the manner in which the entries were kept, it is impossible to sort out what is based upon Yajima's personal knowledge and what is based upon hearsay.Further, Mr. Yajima stated in his protocol that the information he obtained from other companies at meetings was in large part based upon "quesses" and "hunches." Therefore, it is impossible to sort out what part of his diary is guesswork and what part was actually heard by Mr. Yajima.

 Against this background of contentions, we now apply our discussion of law (Part II) to the Yajima diaries on the basis of the developed record.

 D. Authentication (F.R.E. 901)

 Although the question is a close one, especially as against defendants other than Mr. Yajima's employer, Toshiba Corp., we find, pursuant to the applicable Rule (F.R.E. 104(b)), that the diaries have been authenticated under the prima facie standard of United States v. Goichman, supra, as the genuine diaries of Mr. Yajima. Put differently, there is sufficient admissible evidence from which the trier of fact could conclude that the diaries are what their proponents claim (i.e., Mr. Yajima's diaries). In this regard, we rely upon the items of evidence hereinafter enumerated, making shorthand reference to the evidence that has been more fully described, supra, in one or other of the parties' contentions.

 (1) The Toshiba logo. See Part II-A-3(b), supra.

 (2) The protocols, which we find admissible against Toshiba only, see infra, but which identify the diaries.

 (3) Yajima's testimony, which we find admissible against all defendants in its authentication aspect only, see Part VIII-C-4, infra, and which identifies the diaries.

 (4) Toshiba's production of the diaries and reference to them in its Rule 33(c) interrogatory answers. *fn99" See discussion at Part II-A-3(a), supra.

 (5) The cross-reference to Mr. Yajima in the other defendants' interrogatory answers and JFTC testimony.

 (6) The similarity to other authenticated documents. See discussion at Part II-A-3(d), supra.

 While there has been no testimony by any custodian or "subscribing witness," such is unnecessary under Rule 903.

 E. Business Record Status (F.R.E. 803(6))

 For the reasons which follow, we conclude that the plaintiffs have not qualified the Yajima diary as a record of regularly conducted activity under Rule 803(6). Furthermore, we conclude that defendants have shown a lack of trustworthiness under the 803(6) trustworthiness proviso. We make this determination pursuant to F.R.E. 104(a), hence, we give the plaintiffs the benefit of inadmissible as well as admissible evidence. Our conclusion flows from a host of individual reasons, but there are several overriding considerations which we state at the outset in terms of the legal requisites of Rule 803(6). To the extent necessary, we incorporate by reference what we said of the diaries in general at pages 9-10 of the Preliminary Statement, for everything we wrote there applies to Yajima's diary. As is already clear, we basically accept defendants' contentions in this area.

 1. The Regular Practice Requirement

 As we have seen, one aspect of qualification of a business record is the necessity of demonstrating that the record was "kept in the course of a regularly conducted business activity," and that "it was the regular practice of that business activity to make the record." We refer to that aspect of the business records rule herein as the regular practice requirement. As such, it has two parts and the plaintiffs have made much of the first part, ignoring the second. Defendants do not dispute that Yajima's activities and the matters related in the diaries were business-related and that any information garnered from the Tenth Day Group meetings was used in Toshiba's business. *fn100" But as defendants correctly argue, the plaintiffs have totally failed to show that the diaries meet the requirement of regularity described at length in Part II-B-2. For, as we therein explained, F.R.E. 803(6) contemplates the admission of materials which are created by routine practices where careful checking and habits of precision and regularity assure their accuracy. There is no evidence before us from any source of any routine practice or careful checking by Yajima or any habit of precision or regularity. None of the proffers of plaintiff supply these requisites, nor do the diaries themselves, and neither the testimony nor protocols of Mr. Yajima nor anyone else supply the missing but necessary requisite for 803(6) status.

 The testimony and the protocols contain only passing references to the diaries, hence plaintiffs argument based thereupon must fail. *fn101" Toshiba's Answer to Interrogatories and Rule 33(c) productions have been discussed at length in Part II supra, and we have explained there why these factors do not qualify the diaries as business records. The reference in one diary to contemporaneous recordation is just that, a random reference.There is, on the other hand, extensive evidence of gaps in these diaries, failure to record numerous meetings *fn102" and delay in recordation.

 In contrast to notions of regularity, the diaries are erratic. They are, like most notes that one keeps for oneself written in an irregular and shorthand manner which Yajima himself doubtless understood, but which no one else can. One cannot tell with any certainty where accounts begin and end. The diaries are laden with all kinds of arrows and symbols and code-like notations and references which are unintelligible. Indeed, the diaries are dominated by cryptic entries. In no sense are the diaries what one could fairly describe as minutes of meetings. With a few exceptions upon which we shall comment, one can never tell whether a given word or phrase or statistic or thought set forth in the diaries represents the statement of some individual, and if so, who he was or what he said. More specifically, the reader cannot tell what Yajima meant by a given entry or what its source is - whether someone said something, whether someone told him that someone said something, whether he thought something, or someone told him that someone thought something, et cetera.

 Where there are numbers arranged in juxtaposition to the names of various Japanese manufacturers of consumer electronic products, or where Yajima places a number which could be interpreted as a bottom price next to the name of a company, it would be possible to conclude that we have been supplied with evidence that production figures or "bottom prices" have been exchanged by company representatives present at this meeting. But that would only be speculation, for we do not really know what Yajima meant by his entry. Equally important, we do not know when and where he got the information, including figures, which he recorded or when he recorded the entries. And even where there are supposed statements of position arranged beside the name of a manufacturer of consumer electronic products, we know nothing of the source of information or the time or manner of recordation. While some of the things we have been saying bear upon the firsthand knowledge requirement which we shall discuss infra, they also bear upon the regularity of practice requirement insofar as they relate to the author's method of preparing the diaries.

 We have considered all of plaintiffs' alleged foundation bases and found them wanting. The res ipsa loquitur approach is totally unavailing for the reasons we have stated.Neither the protocols in the testimony nor any cross-authentication is sufficient. Passing references or even affirmations of accuracy of an occasional entry will not suffice. The mere fact that Yajima attended meetings of the Tenth Day Group or reported to his superiors thereupon (and there is no evidence he used his diaries to do so) does not satisfy the regular practice requirement.No more availing is plaintiffs' reliance upon "a pattern of reporting the conduct of the meetings" to both superiors and subordinates. That fact has not been established in this record, but even if it had and even though entries are "business related," the regular practice requirement is not thereby met.

 Not only have plaintiffs failed to qualify the diaries, but the indications which appear are contra-indications negating a finding of regular practice. The short of it is that the foundational contentions set forth by defendants are correct. The diaries are hodge-podges of notes in which Mr. Yajima has not explained with any degree of clarity what he meant. Plaintiffs have failed to meet the regular practice requirement explained in Part II.

 The plaintiffs assert that code-like entries do not deprive a document of business record status, citing United States v. Baxter, 492 F.2d 150, 164 (9th Cir. 1973), cert. dism. 414 U.S. 801 (1973) cert. denied, 416 U.S. 940 (1974) where the court admitted the customer book left by a member of a heroin importation conspiracy which contained ambiguous nicknames and code-names. But what plaintiffs neglect to mention is that the author of the notebook testified at trial (he was the government's informant and "star" witness), hence, was subject to cross-examination on the notebook. Rather, the situation we face here is similar to what the court faced in United States v. Lykes Bros. S.S. Co., 432 F.2d 1076, 1079 (5th Cir. 1970), where, affirming the district court's refusal to admit internal "notes" produced by the defendants, the Fifth Circuit stated:

 "An examination of the notes does not reveal either when they were prepared, by whom they were prepared, for whom they were prepared, or from what source of information they drew. The notes, therefore, of themselves, do not overcome the lack of a proper foundation which the government otherwise failed to provide."

 Plaintiffs rely heavily upon McPartlin, supra, but there the diarist took the witness stand, was subject to in-court examination, and the diary was used only to refresh recollection and corroborate dates. That is not what is attempted here. Rather, plaintiffs seek to introduce the diaries and then to argue from bits and pieces, from selected words and sentences that there was (export) conspiratorial activity afoot. This is a clever litigation strategy, but one which they cannot successfully pursue because of the lack of foundation for admissibility of their evidence.

 It is of course true that Yajima died before this action was instituted. However, as we have noted, others might have been called in an attempt to qualify his diary, but they were not. Yajima's superior, Mr. Kamakura, attended many meetings of the Tenth Day Group with Yajima. Presumably, he could have clarified Yajima's diary or described Yajima's reporting practices. Perhaps he could have explained (or perhaps he would have "explained away") the bits and pieces of the diary that plaintiffs rely upon. In any event, although he is alive and well and employed by Toshiba and has been available for depositions for years, he has not been called. Others familiar with Yajima's work and habits might have been called too, but they were not. We must again underscore in this regard that our remarks are not just retrospective. Plaintiffs' litigation strategy, as clearly explained by Mr. Rome, contemplated that the plaintiffs would not call any such witnesses at trial, a strategy confirmed by his failure to list any such witnesses in his FPS.

 2. Requirement of Firsthand Knowledge and Contemporaneity

 Plaintiffs have also failed to demonstrate that the diaries were made by a "person with knowledge or from information transmitted by a person with knowledge." Yajima's diaries contain double and triple hearsay, and because of the manner in which the entries were kept, it is impossible to sort out what is based upon Yajima's personal knowledge and what is based upon hearsay. Yajima stated in his protocol that information he obtained from other companies at meetings was in large part based upon "guesses" and "hunches." *fn103"

 As we have noted, the firsthand knowledge requirement of 803(6) is subject to the provision that information may properly be transmitted to the recorder by someone with knowledge and with a duty to report. However, neither has that requirement been met as to any matters which may have been reported to Yajima by others.Again, plaintiffs' reliance upon circumstantial evidence and colloquy instead of upon conventional methods of laying foundation has failed them, for we have no evidence that such others themselves have firsthand knowledge or a duty to report. The diaries do not explain themselves, and no one, via deposition, has explained them. Nor, as we have noted above, will they do so in trial testimony, because of the failure of plaintiffs to list any such person in the F.P.S.

 3. The Trustworthiness Proviso

 Rule 803(6) provides for the exclusion of business records which otherwise meet its requisites when the source of information or the method or circumstances or preparation indicate lack of trustworthiness.The burden is upon defendants to show lack of trustworthiness.

 We shall not burden the record by rescribing our description of the diaries. However, given that description, we do not believe that diaries possess the circumstantial guarantees of trustworthiness that the hearsay rules implicitly and 803(6) explicitly require. The word "trustworthiness" hardly needs an exegesis in this context.Suffice it to say that the inadequacies of the diaries which we have described in such detail make it clear that where diaries such as these are sought to be admitted for the truth of their contents, they cannot be accorded faith or credit or trust within the framework of a judicial system which does not countenance guesswork or speculation. In short, a document which is unintelligible is not trustworthy.Plaintiffs might have supplied the necessary foundation, but they have not. The defendants have met their burden of showing that the diaries are untrustworthy, and that is another ground of 803(6) exclusion.

 F. Admissions of a Party Opponent

 Having held that the diaries as a whole cannot come in (against all defendants) as business records, we must consider whether individual passages from Yajima's diaries may nonetheless come in as admissions of a party opponent, i.e. Yajima's employer Toshiba Corp. under F.R.E. 801(d)(2). Conceivably, such an approach might require us to analyze every passage in the diaries to see if they can pass 801(d)(2) muster, as well as to determine with respect to each passage whether Yajima was authorized to make the statement (the diary entry) under Rule 801(d)(2)(C) or whether it was made within the scope of his employment so as to qualify under Rule 801(d)(2)(D). *fn105" Because they are simpler of resolution we turn to the latter considerations first.

 There is no foundation in the record which bears on, much less establishes, whether Mr. Yajima was authorized by Toshiba to make a statement (i.e. make a diary) concerning the subject (presumably the subject matter of the Tenth Day Group meetings). Accordingly, there is no basis for their admissibility under F.R.E. 801(d)(2)(C). However, with the exception hereinafter noted, it seems plain that attendance at the Tenth Day Group meetings was within the scope of Yajima's agency or employment, that the diaries concern matters within the scope of his agency or employment, and that they were also made during the existence of the employment relationship. Yajima was at various times manager of marketing planning for color as well as black and white TV in Japan and it would seem that making a diary would be impliedly within the scope of his employment. There is no evidence that he was forbidden to make a diary and it would be hypertechnical to hold that the act of making a diary was beyond the scope of his employment. F.R.E. 801(d)(2)(D) is thus satisfied. The exception which we note is that Yajima had absolutely no authority over export matters. Any reference to export matters in his diaries was beyond the scope of his employment, hence excludable.

 The other problems to which we have adverted are far more troublesome. As we have seen in our discussion of the law, Part II-C-2 supra, an admission is, by definition, a statement which meets the fundamental requirement of F.R.E. 801(a)(2) that the "statement" be "an oral or written assertion, or "non-verbal conduct of a person if it is intended as an assertion." *fn106" / The putative "statements" at issue are the diary entries. We are not dealing in any respect with oral utterances or non-verbal conduct, so that the question is whether the diary entries are intended as written assertions.

 We have explained above that the party proffering the evidence has the burden of establishing that what it is proffering is in fact an assertion.In general terms (see discussion infra), we find that plaintiffs have not met that burden here. This conclusion stems from the nature of the diaries which we have described. One cannot tell from reading the diaries what Mr. Yajima intended, whether he was making an assertion or relating the assertion of someone else, or relating what he thought someone else said or what he thought someone else thought or what someone told him someone else said or thought, et cetera. While plaintiffs might have illuminated this area of the case had they taken the deposition of Mr. Kamakura or any of the scores of people who attended Tenth Day Group meetings, because of their calculated trial strategy, they did not.

 We have couched our statement that the plaintiffs have not met their burden of establishing the diary entries as assertions in "general terms. Although we have read the diaries several times and are reasonably confident that this conclusion applies across the board, by this locution we refrain from making a categorical declaration (or holding) which applies to every passage or entry in the diaries. For reasons to be explained in our opinion addressing the conspiracy summary judgment motions, such a passage by passage analysis is unnecessary. We are satisfied, however, with respect to any supposed export references," all of which we have examined, that plaintiffs have not met their burden of establishing the existence of an assertion, hence none of of those so-called references are admissible as admissions of Toshiba.

 As we pointed out in summarizing plaintiffs' foundational approach with respect to the diaries, all of the diaries and the material contained therein are proffered as accurate accounts of what transpired at meetings of the Tenth Day Group and other allegedly conspiratorily groups mentioned therein. Plaintiffs from time to time have argued their various diary passages are not offered to establish their truth or to establish Yajima's belief in their truth, in either of which cases they would, if the necessary foundation were established, qualify as assertions, but rather that they are introduced merely to demonstrate that they were made i.e. that Yajima wrote the entry. *fn107" In such event however the diary entries would be inadmissible under F.R.E. 401 because they would be irrelevant to the litigation. Alternatively, their probative value would be so slight that it would be far outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury or by considerations of undue delay and waste of time. F.R.D. 403. *fn108"

 G. Statements Against Interest

 Although plaintiffs have met the unavailability requirement of Rule 804(b)(3) - Mr. Yajima is dead - the diaries nonetheless fail to meet the other facets of the statement against interest exception. Preliminarily, we note that, for the reasons set forth in the preceding sections, the Yajima diary entries are not statements, i.e., assertions within the Rule 801(a) definition of statements which on its face applies to Rule 804 (b)(3)'s "statements" against interest.At least, the export references are not.

 Beyond this analysis, however, it is even harder for the diary entries to qualify as statements against interest than as mere statements. As has been made clear in the discussion in Part II, supra, in order to qualify as a statement against interest the statement must be against the interest of the declarant, i.e., Mr. Yajima, rather than that of his employer, Toshiba Corporation. *fn104" As we have seen, at times relevant here criminal prosecution and civil actions against alleged corporated offenders in Japan were extremely rare, and such actions against individuals were unheard of. Nonetheless, given the text of the Japanese anti-monopoly law, we are not prepared to conclude that Yajima stood no risk of prosecution as an individual, if in fact the diaries were inculpatory as to him personally. However, we find little or nothing in the diaries to render Yajima personally liable under Japanese law.

 One cannot extract diary entries from context and attribute to Mr. Yajima any positions ascribed in the diaries to Toshiba, his employer. Because of the cryptic nature of the diaries, and their failure to attribute positions or actions to individuals, there are no utterances of Mr. Yajima as such to consider. The Yajima diaries, for the most part, record the actions of others, not the actions of Mr. Yajima, and some of the reported discussions took place at meetings that Yajima did not attend. Any passages in the diaries reflecting such discussions could not be statements against the interest of Mr. Yajima, except insofar as mere recordation of entries could be deemed to be "against interest."

 Moreover, under Rule 804(b)(3), the question is not simply whether the statements are against interest but whether any statements attributable to Mr. Yajima were "so far" contrary to his interest that a reasonable man would not have made them unless they were true. That test is not met here.

 There is an additional and still stronger ground for excluding the diaries under Rule 804(b)(3). For, even if one assumes that Yajima's diaries were objectively against his interest, it is plain that the plaintiffs have not met the important requirements of Rule 804(b)(3) of showing that the declarant believe at the time he makes the statements that it is against his interest. There is just nothing in the record to suggest that Yajima, represented by Toshiba counsel when he gave the testimony and protocols, was aware that anything he was saying was contrary to his own interest, nor can such be inferred on this record.

 H. The Residual Hearsay Exceptions

 In view of the foregoing discussion about Mr. Yajima's diaries, and of our extensive discussion in Part II-F, we need not labor long on the admissibility of the Yajima diaries under the residual exceptions, Rule 804(b)(5), notwithstanding Mr. Yajima's "unavailability."

 First, the diaries fail to satisfy the requirements of F.R.E. 804(b)(5)(B), that the statement be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. While the testimony of Mr. Yajima obviously could not be procured at this time by reasonable efforts since he is deceased, the plaintiffs could have done much to procure evidence about the alleged conspiratorial meetings from other sources, i.e. by taking the depositions of Yajima's business associates and those who were present at the meetings. There are dozens of such people who are available. Plaintiffs oft-repeated complaint that the witnesses would not remember is but an ipse dixit.There are voluminous materials upon which to base examination. Indeed, it would be a travesty if the plaintiffs were permitted to invoke the residual exceptions when by a calculated litigation strategy they refused to even seek the necessary foundation required by the traditional hearsay exceptions.

 There is another and equally compelling reason why the diaries are not admissible: failure to meet the overriding requirements of exceptional guarantees of trustworthiness as required by the Third Circuit in United States v. Bailey, supra.We need not repeat what we have said at such lengths about the diaries. It is enough to say that it has been more than amply demonstrated on the record that the diaries are not trustworthy and as we pointed out above, the burden of showing trustworthiness for purposes of the residual exceptions is upon the proponent of the evidence. Thus, neither of the requirements, i.e. exceptional guarantees of trustworthiness or high degrees of probativeness and necessity, are present here. For all of the foregoing reasons, and in light of the narrow construction we are obliged to give the residual exceptions under Bailey, we hold that Yajima's diaries are inadmissible under 804(B)(5) and 803(24).

 I.Internal Hearsay (Rule 805)

 It is also necessary to subject the content of the diaries to internal hearsay examination. Subject to such scrutiny, vast portions of the diaries would have to be excluded as containing multiple hearsay not subject to any exception to the hearsay rule. In view of our decision to exclude the diaries for other reasons, it is not necessary for us to make a page by page analysis so as to redact them leaving only what is not multiple hearsay. We can however say with confidence that were we to do so such significant portions would be excised that the diaries as a whole would themselves have to be excluded as having been so fragmented as not to give a fair representation of anything, even if they did theretofore.

 IV. The Yamada Diary, DSS 51

 A. Introduction

 The Yamada Diary is a notebook into which Noboru Yamada, Department Manager of the Electric Appliance Department, Consumer Products Division of Hitachi, Limited, made certain entries during the period from (approximately) August 1965 to November 1965. It was seized during the JFTC raid upon the offices of Hitachi Ltd. on November 8, 1966. Hitachi produced this notebook to plaintiffs in the course of discovery in these proceedings. At that time, the document was identified by document identification numbers: HJ 50016 through HJ 50054.

 Plaintiffs offer the Yamada diary in evidence against all defendants. Plaintiffs claim that it is authenticated under F.R.E. 901(a), 901(b)(4), 901(b)(9), and 902. They offer it as a business record under F.R.E. 803(6), as an admission of Hitachi, Limited, under F.R.E. 801(d)(2), as a present sense impression under F.R.E. 803(1), as a declaration against interest under F.R.E. 804(b)(3) and as admissible under the residual hearsay exceptions F.R.E. 803(24) and 804(b)(5). In general terms plaintiffs offer the Yamada notebook as an authentic account of what took place at the group meetings which Mr. Yamada purportedly attended.

 B. Plaintiffs' Foundation For Authentication and Admissibility Under One of the Exceptions to the Hearsay Rules

 Plaintiffs' proffer of Yamada's notebooks, as well as those of Yamamoto, Okuma, and Tokizane, considered infra, is based upon the same types of matters that they offered to lay foundation for the Yajima notebooks. Plaintiffs describe the common bases as follows:

 (1) Identification of the diaries in the (respective) interrogatory answers of the diarist's employer as its response to those interrogatories. *fn110"

 (2) The "pattern of cross-authentication" which exist among the DSS 48-98, in which various persons identify entries in documents. *fn111"

 (3) The "confirming testimony" which establishes the trustworthiness of the JFTC material. *fn112"

 Plaintiffs also rely across the board upon "a pattern of reporting the conduct of the meetings to both superiors and subordinates," the fact that the notebooks are "business-related" and upon the lawful JFTC seizure of the diary from the Hitachi premises.

  In addition to these factors, plaintiffs also rely upon the following:

  (1) Counsel for the Hitachi defendants have indicated that there was "no reason to believe that it was not Mr. Yamada's diary."

  (2) The "chop" or seal of Mr. Yamada has been affixed to one of the pages of the diary (HJ50034).

  (3) The Yamada diary appears in the FJTC investigator's lists of evidence (DDS-93), which plaintiffs claim is an official record of the JFTC.

  (4) One or more individuals named Yamada are identified in Hitachi, Toshiba, and Sanyo Answers to Interrogatories (Plaintiffs' FPS, App. A at 423, 480, 485) as having attended meetings of the MD Group and the Market Stabilization Council.

  (5) Entries in the Yamada diary are of the sort which mights be expected by one in Mr. Yamada's high position, (i.e., general manager of the Yokahoma works and later Department Manager, Electronic Appliance Department Consumer Products Division), thus indicating the authenticity of the diary.

  (6) There is a pattern of reporting in the notebook congruent with that of other diaries.

  C. Defendants' Response

  (1) The document was produced to plaintiffs in response to a Rule 34 request, not a Rule 33(c) proffer.

  (2) Hitachi's interrogatory answers do not establish in any way either its authenticity or business record status.

  (3) Other than a reference in the JFTC lists of evidentiary materials (DSS-93), which is of dubious admisibility, there is no information in the record regarding the document.

  (4) No evidence has been presented as to when or for what purpose Mr. Yamada's seal was attached to one page of the Yamada document.

  (5) Entries are essentially illegible and unintelligible.

  (6) Mr. Adachi's testimony before the JFTC merely elucidates a few figures in the Yamada diary and does nothing to authenticate the diary.

  (7) Validation of the Yamada diary by comparison of certain entries therein to certain entries in the Yamamoto diaries is impermissible unless the Yamamoto diaries have first been authenticated, and even if the Yamamoto diaries were authenticated, similarity in entries could have resulted from information which was derived from a common third-party source.

  (8) Yamada is a common Japanese surname and the persons named "Yamada" who are identified in various defendants' answers to interrogatories as having attended various group meetings are not necessarily the same as Noboru Yamada of Hitachi, Ltd., since at least four other persons named "Yamada" are mentioned in the record.

  (9) No evidence is in the record to indicate that Noboru Yamada attended any of the meetings noted in the Yamada diary.

  (10) Plaintiffs have presented no evidence to demonstrate that Mr. Yamada acted under a duty to record any of the information in the diary.

  (11) Plaintiffs have presented no evidence as to what periods of time may have elapsed between when Mr. Yamada learned certain information and when he recorded it in his diary.

  (12) There is no evidence of systematic checking or of a regular or continuous habit on Mr. Yamamoto's part in marking entries in his notebooks relating to group meetings.

  (13) Mr. Yamada is alive and well and still employed by Hitachi and available for depositions, but has not been deposed by plaintiffs.

  D. Authentication

  Although the point is very close, we find Mr. Yamada's diary to be authenticated for much the same reason as we found Yajima's diaries authenticated. We rely in this regard on the identification of the documents in answers to interrogatories and its production by Hitachi *fn113" /; the presence of Mr. Yamada's "chop" on the of the pages of the diaries; the apparent acknowledgement of the authenticity of the diary in Mr. Adachi's testimony before the JFTC, *fn114" / and the circumstances of seizure of the diary. We believe that these factors taken together satisfy the Coichman standard.

  E. The Business Records Exception

  Yamada's diary does not qualify as a business record under F.R.E. 803(6) for the reasons set forth at length in our discussion of Yajima's diaries. We shall not burden the record by rescribing virtually al of the reasons for nonadmissibility advanced there, and we simply incorporate by reference our rulings. In capsule form, we note the following. First, the plaintiffs have failed to adduce any evidence of routine practice or systematic checking or of any habit of precision or regularity on Mr. Yamada's part in connection with his diary entries. Second, this diary is worse than a "hodge podge." We have read it in its entirety (in English translation of course) and can certify that there is hardly a line much less a page which is intelligible -- that is to anyone other than Mr. Yamada, assuming he could understand it. To call this document cryptic would be extremely charitable.Third, there are the same problems of lack of evidence of first hand knowledge and a duty to report.Fourth, there is no evidence in the record as to what periods of time may have elapsed between when Mr. Yamada learned certain information and when he recorded it in his diary. Moreover, for the foregoing reasons and because of the character of the diary there are trustworthiness problems of such dimension as to render the diary inadmissible under the 806(6) proviso. To repeat what we said in discussing Yajima's diaries, a document which is unintelligible cannot be trustworthy. We have thus essentially accepted defendants contentions about the Yamada diary and its admissibility under Rule 803(6). *fn115"

  In addition to the reasons akin to those which required exclusion of Yajima's diaries, there are other reasons preventing the Yamada diary from coming in as business records. There is no evidence in the record as to Yamada's presence at any of the Tenth Day Group meetings. Plaintiffs seem to believe that the congruence between entries in Yamada's diary and entries in the other diaries is sufficient to establish such a presence and also to establish the admissibility of the diary as a business record under 803(6). For the reasons explained above that is incorrect. Moreover, unlike Yajima, Yamada is alive and well and available for depositions but they have never been taken. Plaintiffs have had an opportunity to lay foundation for admissibility -- that is what lawyers usually do in cases before us -- but have passed it by.

  F. Admissions, The Other Hearsay Exceptions, and Internal Hearsay

  The Yamada diary and the entries within it do not qualify as admissions for the same reason as the Yajima diaries: lack of foundation. Rather than repeat what we said above we incorporate it by reference and add the overall comment that, as in Yajima's case, there is sufficient information in the record for us to conclude that the entries in Yamada's diary constitute assertions, or what they assert. And if they are not proffered as assertions they are irrelevant.

  The diaries do not qualify as statements against interest for the same reasons as the Yajima diaries: the absence of assertions, the absence of identifiable statements of Yamada which would be personally inculpatory against him, and plaintiffs failure to produce evidence from which we could infer that Yamada was conscious that any statements were against his interest. In addition, plaintiffs have failed to meet the unavailability requirement, for Mr. Yamada, unlike Mr. Yajima, is alive and well and has been available for a deposition.

  The residual exceptions are unavailing because of the utter lack of trustworthiness of the diary on its face. Additionally, Mr. Yamada is available for depositions; hence the diaries themselves are not more probative on the point for which they are offered than other evidence which the proponent could procure through reasonable efforts. We understand of course that the events at issue occurred many many years ago, and that plaintiffs therefore argue that the diary is the best available evidence of what occurred. The plaintiffs have failed to establish that this is so, however, since they have not made the slightest attempt to take depositions. Rather than being meaningless, we think that a deposition might have been very fruitful inasmuch as the deponent/declarant could have been examined on all of the diaries, testimony, protocols and the other hearsay materials. As with the Yajima diary, this is not the stuff of which residual exceptions are made.

  It is also necessary to subject the content of the diaries to internal hearsay examination. As with the Yajima diaries, vast portions of the Yamada diary would have to be excluded as containing multiple hearsay not subject to any exception to the hearsay rule. As with the Yajima diaries, the deletion of internal hearsay would result in the excision of such significant portions that the diaries as a whole would themselves have to be excluded as having been so fragmented as not to gave a fair representation of anything, even if they did theretofore.

  V. The Yamamato Diaries, DSS 52-54

  A. Introduction

  The Yamamoto diaries, into which Mr. Mamoru Yamamoto of Hitachi, Limited, purportedly made certain entries during the period of approximately October of 1964 to July of 1966, were seized by JFTC during the course of the Six Company Case. Hitachi Ltd. produced these notebooks to plaintiffs during discovery in these proceedings. At that time, these documents were identified by document identification numbers: HJ 50055 through HJ 50160 and HJS 60002 through HJS 60010.

  Plaintiffs offer these diaries in evidence against all defendants. More specifically, plaintiffs claim these diaries are authentic under F.R.E. 901(a), 901(b)(4), and 901(b)(9). They are offered as admissions of Hitachi, Limited, under F.R.E. 801(d)(2), as present sense impressions under F.R.E. 803(1), as business records under F.R.E. 803(6), as declarations against Mr. Yamamoto's interest under F.R.E. 804(b)(3) and under the residual exceptions, F.R.E. 803(24) and 804(b)(5). Plaintiffs offer the diaries as authentic accounts of what took place at the group meetings which Mr. Yamamoto purportedly attended.

  B. Plaintiffs' Foundation for Authentication and Admissibility Under One of the Exceptions to the Hearsay Rules

  1) The Yamamoto notebooks were identified in answers to the interrogatories filed by Hitachi Ltd.

  (2) In his protocol before the JFTC (DSS-86), Mr. Yamamoto identified the notebooks, which are in turn identified in the JFTC investigator's list of evidence (DSS-93) as his own.

  (3) In his testimony before the JFTC (DSS-64), Mr. Adachi testified concerning two entries in the Yamamoto notebooks, and raised no challenge to the authenticity of the notebooks at that time.

  (4) Mr. Yamamoto put his business address into his notebooks, and kept his notebooks at his desk, for that is where the JFTC investigators found (and lawfully seized) them.

  (5) In his protocol before the JFTC, (DSS-64), Mr. Yamamoto stated that he went to some meetings of the Tenth Day Group.

  (6) As to group meetings which he did not attend, Mr. Yamamoto states in his protocol before the JFTC (DSS-64) that Mr. Adachi would communicate information concerning these meetings to Mr. Yamamoto within a week of occurrence of the meetings, and that Mr. Yamamoto would promptly record all information relevant to his business responsibilities.

  (7) It can be assumed from the corporate structure of Hitachi, Ltd. that Mr. Yamamoto was receiving regular timely reports concerning group meetings which he did not personally attend.

  (8) Dates of group meetings noted by Mr. Yamamoto correspond with dates of which plaintiffs are aware from other evidence in this litigation, thus corroborating the accuracy of Mr. Yamamoto's notes.

  (9) Mr. Adachi did not "embellish" any of the reports he made to Mr. Yamamoto concerning meetings which Mr. Yamamoto did not attend because he knew the information had to be reliable enough for Mr. Yamamoto to act upon it.

  (10) All entries in the Yamamoto notebooks are business-related.

  (11) The contents of the Yamamoto notebooks must have been communicated at least at Mr. Ueno, for he signed the receipt when the JFTC investigators seized the notebooks.

  (12) Mr. Adachi ratified the contents of the Yamamoto notebooks because, if Mr. Yamamoto's practice in writing this information down were against company policy, Mr. Adachi would have stopped him from acting as he did.

  (13) One diary (DSS 53) bears the Hitachi logo, with the legend "1964 Diary" and under that "Hitachi Kaden, Inc." and under that "Hitachi Installment Sales, Inc." Yamamoto gives his name and for his address he gives "TV Dept., TV. SEC," which identifies the diary as a business notebook, not a personal notebook.

  C. Defendants' Response

  (1) The Yamamoto notebooks were produced to plaintiffs in response to a Rule 34 request, not a Rule 33(c) proffer;

  (2) The authenticity of the Yamamoto notebooks was not challenged before the JFTC because the notebooks were not introduced as substantive evidence.

  (3) Mr. Adachi's testimony before the JFTC relating to entries in the Yamamoto notebooks relates not to the authenticity of the notebooks, but to the inaccuracy of figures recorded in the notebooks.

  (4) Correlation of dates recorded for group meetings recorded in the Yamamoto notebooks with dates noted in other items of proffered evidence does nothing to satisfy the requirements of the Federal Rules of Evidence.

  (5) Many dates of group meetings which took place in the period covered by the Yamamoto notebooks are not noted therein, which fact indicates a lack of regularity in creation of these entries.

  (6) Plaintiffs have presented no evidence that Mr. Yamamoto regularly put into his notebook information concerning group meetings that Mr. Adachi had personally attended, as opposed to meetings which Mr. Yamamoto or Mr. Adachi may have learned of from unidentified third persons.

  (7) There is no evidence of systematic checking or of a regular or continuous habit on Mr. Yamamoto's part in making entries in his notebooks relating to group meetings.

  (8) Mr. Yamamoto states in his protocol before the JFTC (DSS-86) that Mr. Adachi added his own ideas accounts of Tenth Day Group Meetings to Mr. Yamamoto's.

  (9) There is no evidence indicating what Mr. Yamamoto's source was for information regarding meetings of any group other than the Tenth Day Group, and neither Mr. Yamamoto nor Mr. Adachi ever attended a single meeting of some of the groups referenced in the Yamamoto notebooks.

  (10) The supposition that a document is found in a business office does not establish it as a business record, nor does the fact that portions of the document are business-related.

  (11) There is no evidence that the contents of these notebooks were ever communicated to anyone, and the fact that Mr. Ueno signed the JFTC receipt does not establish that he read the notebooks.

  (12) Entries in the Yamamoto notebooks are essentially unintelligible, and it is impossible to determine where opinion stops and the information, if any, begins.

  D. Discussion

  We need not dwell long on the Yamamoto diaries because we agree essentially with defendant's contentions. Accordingly, the diaries must be excluded for the reasons set forth in our discussion of the Yajima and Yamada diaries. They are authenticated by virtue of their mode of seizure and production, by Mr. Adachi's brief testimony, by Mr. Yamamoto's act of putting his business address in the notebooks, and by his reference to the diaries in his protocol. However, they must be excluded as hearsay because they have not satisfied any of the exceptions.

  First, they cannot qualify as business records because they suffer from the same vices as the Yajima and Yamada diaries. They are more similar in character to Yajima's diary then to Yamada's; hence we incorporate by reference our discussion of the admissibility of Yajima's diary under Rule 803(6) including our comments upon plaintiffs' proffered foundation. However, Yamamoto's diaries also have problems of their own. The principal additional problem with the Yamamoto diaries is that it is plain (and plaintiffs concede) that Mr. Yamamoto never attended many of the meetings whose events are allegedly recorded in the diary. Indeed, Yamamoto stated in his protocol that his diaries were founded entirely on hearsay:

  These two notebooks are mine and the content of the discussions at the meetings of the Tenth-Day Group and TS Group was written by me from what I heard from Vice-Director of the TV Department Adachi. It was when I went to Vice-Director Adachi's desk or when he came to my desk that he talked to me about the discussions at the meetings. This was either the next day or within a week following the date of the meeting.He talked to me looking at his memo from the meeting, and he added his own ideas. I have written only the parts of the meeting which related to me in my notebooks.

  The hearsay source of this diary would never have been apparent but for this statement.This is another reason why the absence of testimony concerning the diary entries relied upon by plaintiffs renders the entries extremely suspect.

  It is thus known with respect to at least some of these meetings that they were attended by Mr. Adachi, who would communicate information concerning these meetings to Mr. Yamamoto. Plaintiffs submit that Mr. Adachi would communicate the information to Mr. Yamamoto within a week of the occurrence of the meetings and that Mr. Yamamoto would thereupon promptly record all information relevant to his business responsibilities. They assert that the correspondence of dates of group meetings noted by Mr. Yamamoto with dates of which the plaintiffs are aware from other evidence of the litigation corroborates the accuracy of Mr. Yamamoto's notes. They submit that Mr. Adachi did not embellish any of the reports he made to Mr. Yamamoto concerning meetings which Mr. Yamamoto did not attend because he knew the information had to be reliable enough for Mr. Yamamoto to act upon it in his official duties. And they conclude that Adachi ratified the contents of the notebooks because if Yamamoto's practice in recording this information were against company policy, Mr. Adachi would have stopped him from doing so.

  These contentions are all very interesting and might be convincing had plaintiffs established them by taking the deposition of either Yamamoto or Adachi, both of whom have always been available. In the absence of such evidence, plaintiffs' contentions must fail. There is no evidence that Mr. Adachi or anyone else ever saw the diary. Plaintiffs have presented no evidence that Yamamoto regularly put into his notebook information concerning group meetings that Adachi had attended as opposed to meetings which Yamamoto or Adachi may have learned of from unidentified third persons. In addition to the fact that Adachi added his own ideas to his accounts of the Tenth Day Group meetings to Yamamoto, the diary contains entries regarding the meetings of groups (the TS Group and the Palace Group) which neither Yamamoto nor Adachi ever attended.

  There was, alas, no evidence of systematic checking or of habits of precision or of a regular continuous practice on Yamamoto's part in making entires in his notebooks relating to group meetings. The regularity problems are further demonstrated by the fact that within the time frame of 27 meetings of the Tenth Day Group referenced in Appendix B of plaintiffs' FPS, both Yamamoto diaries contain a total of only four references to the meetings. That fact hardly supports a claim of regularity of either attendance or of reporting.

  The diaries contain the same methodological problems that the Yajima diary contains in terms of being similarly cryptic and erratic. There are likewise numerous unintelligible entries and it is impossible to sort out opinion from fact. Notwithstanding plaintiffs' suggestion, correlation of dates recorded for group meetings recorded in the Yamamoto notebooks with dates noted in other items of proffered evidence does not qualify the diaries as business records within the meaning of the F.R.E. Neither does it matter that the diaries relate to business matters. For the same reasons we mentioned in the case of the other diaries, there are overwhelming indicia of the unreliability of the diaries. *fn116"

  We need not dwell further on the Yamamoto diaries. For the very same reasons set forth in our discussion of the Yajima and Yamada diaries and the preceding discussion with respect to the Yamamoto diaries, neither the diaries nor the individual entries within them can qualify as an admission against Hitachi, or as statements against interest, nor can they qualify under the residual exception. Moreover, they are afflicted by the same internal hearsay problems as we have noted with respect to the diaries of Yajima and Yamada.

  VI. The Okuma Diary, DSS 55

  A. Introduction

  The Okuma diary is a notebook into which Mr. Mshizo Okuma, formerly assistant manager of the radio and television section and later assistant director of the sales department of Melco, made certain entries. While the diary is lengthy, we have before us only the three pages thereof which have been translated. The diary was seized by the JFTC during the course of the Six Company Case. Melco produced the diary to plaintiffs during discovery. At that time, the translated pages of the diary were marked by document identification numbers 2198 to 2200, although as will be seen, Melco claims that the plaintiffs have misrepresented the diary by marking the pages out of their correct order. Plaintiffs offer the notebooks in evidence against all defendants on essentially the same basis as we have noted in connection with the previous diaries. They offer the diary pages as containing authentic accounts of what took place at the group meetings which Mr. Okuma purportedly attended.

  B. Plaintiffs' Foundation

  (1) The Okuma diary was identified via Melco's supplemental answers to interrogatories of NUE, dated May 15, 1975, in which Okuma was identified as assistant to the manager of the Consumer Product Sales Department of Melco. The diary was also identified in Melco's response to plaintiffs' interrogatories to defendants relating to the existence, location, and destruction of documents.

  (2) Okuma identified his diary in his protocol given to the JFTC, stating that it was his diary and specifically referring to a February 16th meeting of the Tenth Day Group which he attended. Moreover, he identifies the February 16th entry as being written at the Tenth Day Group. In the protocol, Okuma also confirms a certain diary entry.

  (3) In his testimony given under oath before the JFTC, Okuma confirms attendance at Tenth Day Group meetings, and makes (only) one correction in the protocol. Okuma was not confronted with his diary during his JFTC testimony, but plaintiffs assert that in light of the fact that he was testifying and made a correction to the protocol, he could have corrected the diary had he wished.

  (4) The diary was lawfully seized by the JFTC from Melco's premises and is so identified in DSS 93.

  (5) The statement on the top of the diary, namely, "Confirmation of the proceedings of the previous minutes" confirms the fact that minutes were kept.

  (6) Okuma made one correction in the diary, "thus confirming the others are accurate."

  (7) Okuma identified one of the entries as an entry he wrote down while talking to the factory, thereby establishing it as a business entry.

  C. Defendants' Response

  Melco asserts generally the same objections to the authenticity, and admissibility of the diary under exceptions to the hearsay rules, as do Toshiba and Hitachi in the discussion above. We add only the points especially stressed by Melco. First, Melco asserts that this was a personal diary intended for Okuma's eyes only.Melco contends that the diary is not authenticated by Okuma's testimony or protocol because the testimony does not mention the diary and because all of the materials taken together are "confusing, internally inconsistent, and meaningless without explanatory testimony by Okuma himself, which the plaintiffs consciously elected not to seek as a matter of trial strategy." Melco highlights its claim that the unexplicated diary is untrustworthy by demonstrating that the documents submitted by plaintiff are out of chronological order and would be confusing and incomprehensible to the trier of fact.More specifically, Melco asserts that the documents which were originally legended as Melco documents number 20583 and 20584 were reversed by plaintiff in their numbering, creating the impression that certain events took place when they in fact did not.

  D. Discussion

  We shall not dwell on the Okuma diary because our analysis of its admissibility vel non essentially tracks our previous analysis. The Okuma diary is authenticated against Melco by virtue of its mode of seizure and production and reference in answers to interrogatories and in Okuma's protocol. However, Melco's interrogatory answers and Okuma's protocol are both admissible only against Melco. As against all other defendants, there is insufficient authenticating evidence even to meet the prima facie standard of Goichman, supra. As a result, the Okuma diary is authenticated only against Melco, and is inadmissible against all other defendants because it is not authenticated by evidence which is admissible against them.

  The diary cannot qualify as a business record because it suffers from the same vice as the other diaries, the lack of evidence of systematic checking or of a regular continuous habit on Okuma's part in making entries in his notebooks relating to group meetings. There is a trustworthiness problem caused by plaintiffs' submission of misordered pages. Moreover, the few pages of the diary that have been translated are punctuated with illegible entries (in English), the correctness of whose translation is challenged. *fn117" Other problems include attribution of statements to various companies without explaining who the speaker was or explaining whether this was merely what the diarist's impression was of the companies' position; a nine-page gap between the first and second pages proffered by the plaintiffs; and the presence of cryptic narrative and chart-like entries which it would take the testimony of the diarist or someone present at the meeting to explain. The diary entries plainly are not admissible as business records. Neither are the diaries nor portions thereof admissible under 801(d)(2) nor 804(b)(3) nor 803(6) nor 803(24) or 804(b)(5) - all for the same reasons as heretofore expressed.

  VII. The Tokizane Diary, DSS 56-57

  A. Introduction

  The Tokizane diary is a notebook of approximately 80 pages, comprising entries purportedly made by Hayata Tokizane, an employee of Matsushita Electric Industrial Co., Ltd. ("MEI"). At the time that the diary entries were allegedly made (between March and April, 1965) Mr. Tokizane was the Director of the Television Division of MEI. He was also a director of MEI from 1967 to 1971 and Managing Director from 1971 to 1974. Only two pages of the diary were submitted to the Court, document numbers MJ3972 and MIH20080.

  Plaintiffs offer the Tokizane diary in evidence against all defendants.More specifically, plaintiffs offer this diary as a business record under F.R.E. 803(6), as an admission of MEI under F.R.E. 801(d)(2), as a declaration against the interest of Mr. Tokizane under F.R.E. 804(b)(3), and under the residual hearsay exceptions, F.R.E. 803(24) and F.R.E. 804(b)(5). Substantively, plaintiffs offer the diary as evidence that Matsushita and Sony conspired to fix the price of 9" color transistor TV sets at 39,800 yen, and that there was a meeting of the Palace Group on March 23, 1965, where a decision was made concerning the price of color TV's.

  B. Plaintiffs' Foundation for Authentication and Admissibility Under One of the Hearsay Rules

  (1) MEI answers to interrogatories identify Mr. Tokizane as the director of the television division of MEI from 1964 to 1968; as such, he was the direct superior of the general manager of the television department of MEI, the immediate superior of the general manager of the transistor department of MEI, and the immediate superior of the general manager of the color television department of MEI.

  (2) The first part of the diary was produced by the Matsushita defendants, and is referred to by them in their correspondence and in their Answers to Interrogatories Set No. 2, Interrogatories 8, 42, and 44.

  (3) The diary contains entries about employees' wages, new employees, and a meeting concerning a press release for new products, i.e. business related matters.

  (4) The diary was an exhibit in the "Six Company Case," and part of the record in that proceeding (DSS 93).

  (5) The diary contains a March 31 entry about a meeting at the "Head Office" involving the President, Vice President and Managing Director who discussed color TV prices, transistor TV's, that the price of a 9" television receiver would be 39,800 yen, and that the president would inform Sony to that effect. The diary also contains an April 1 entry indicating "telephone from President about the Sony matter." Plaintiffs claim that this entry, in conjunction with the March 31 entries, indicates that Matsushita and Sony set the price of 9" transistor color TV's at 39,800 yen.

  (6) The April 5 entry refers to a phone call from the "Chairman" (but does not specify which chairman) concerning the decision of the Palace Group on color prices. This decision was purportedly made at a Palace Group meeting on March 23, 1965, since Appendix B to Plaintiffs' FPS and document MJ2823 (the JFTC investigator's statement of the case, DSS-94) lists a Place Group Meeting on March 23, 1965.

  (7) Despite the fact that the diary entries do not mention the year, they do indicate that April 5 was on a Monday, and an examination of a perpetual calendar reveals that the year must be 1965.

  C. Defendants' Response

  (1) There was no testimony or protocol by Mr. Tokizane in the Six Company Case record. No one else in the Six Company case referred to Mr. Tokizane's diary. The present case has no deposition dealing with Mr. Tokizane. There was no foundation laid for admissibility of the diary in the JFTC proceeding.Consequently, other than the bare diary itself, there is no explanation of what the diary means, how it was prepared, and for what it was used.

  (2) Since no other source sheds light on the meaning of the diary, it is impossible to relate any individual entry in the diary to any other entry. For example, nothing in the diary indicates that the 9" T.R. price of 39,800 yen in the March 31 entry relates to the "telephone from president" entry of April 1, or the "Chairman phone call entry" of April 5, or any other entry.The attempted connection between the 9" television receiver price of 39,800 yen, in the March 31 entry, with the April 5 entry concerning the Palace Group decision on color prices is impossible, since 39,800 yen is too low a price for a color TV. *fn118"

  (3) The entries do not purport to have anything to do with an export conspiracy, nor do they say that there was any agreement reached in the sense of parallel pricing conduct. Consequently, the jury cannot be permitted to speculate as to what these meaningless entries refer to.

  (4) Plaintiffs' contention that the March 31 and the April 1 entries indicate that Sony and Matsushita together set the price of 9 inch color transistor TV sets at 39,800 yen is clearly erroneous, since at the alleged time of the diary entries (April 1976) Sony was not exporting color TV sets. Also, the price of 39,800 yen was not comparable to Sony's prices for those models. Furthermore, the diary entries nowhere state that Sony and Matsushita fixed prices, merely that the president will inform Sony about something, and it is impossible to infer a price-fixing agreement involving Sony from these cryptic comments in the diary.

  (5) It is uncontested that Mr. Tokizane never attended any of the various group meetings. Thus, any references to discussions at the Palace Group meetings are, at best, multiple hearsay.

  (6) There is no showing in the diary as to what year the entries were made. References in other documents that meetings took place in 1965 does not shed light on the year that this diary was made.

  (7) If the diary was necessary to Mr. Tokizane's business, it would have been written in a comprehensible manner.

  D. Discussion

  We have spent much time in dealing with the diaries. This has been necessary because of the great scaffolding which plaintiffs have erected on the basis of random entries therein, a scaffolding which collapses because of the non-existence of foundation. It is time to move on to other matters and so we shall simply note that we agree with defendants' contentions and conclude that the Tokizane diary is not admissible under any of the exceptions to the hearsay rules for essentially the same reasons as the other diaries. *fn119" / Plaintiffs make much of Mr. Tokizane's high position within Matsushita. That does not affect admissibility. This document is as cryptic as can be and we are not about to let the trier of the fact (aided of course by some helpful suggestions of their friendly plaintiffs' counsel) speculate as to what it means on the basis of selected bits and pieces.

  At the hearing plaintiffs' counsel argued that even if the document was inadmissible, it would still be relied upon for "corroboration." We know of no authority for such a proposition, and suggest that it reflects the bankruptcy of plaintiffs' evidentiary case.

  VIII. JFTC Testimony, DSS 58 - 74

  A. Introduction

  During the Six Company proceedings, a total of 17 different witnesses testified before the JFTC Hearing Examiners. *fn120" / The names of the witnesses are as follows: Document DSS Number Witness Company Number DSS 58 Tsuruta MEI TJ 2144-2218 DSS 59 Oshima MEI TJ 2509-2551 DSS 60 Ta Fujio MEI TJ 1468-1523 DSS 61 Tsu Fujio MEI TJ 4416-4464 DSS 62 Hirano Sanyo TJ 2014-2143 DSS 63 Yoshioka Sanyo MJ 2232-2264 DSS 64 Adachi Hitachi MJ 1893-1986 DSS 65 Yamamoto Hitachi TJ 1408-1467 DSS 66 Nishi Hitachi MJ 2652-2661 DSS 67 Okuma Melco MJ 1987-2044 DSS 68 Kihara Melco MJ 2527-2547 DSS 69 Kamakura Toshiba MJ 2044-2087 DSS 70 Yajima Toshiba MJ 2098-2160 DSS 71 Kawahara Toshiba MJ 2662-2670 DSS 72 Ogawa Sharp MJ 2161-2187 DSS 73 Ogawa Sharp MJ 2617-2632 DSS 74 Iue Sanyo MJ 2671-2678

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