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September 29, 1980


The opinion of the court was delivered by: BECKER



 (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

 (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 ...

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