The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
Defendant Mark E. Baker has filed two motions in limine (Doc. Nos. 68 & 69) to preclude AAMCO Transmissions, Inc. ("ATI") from admitting audio-tape recordings, debriefing memoranda, shopping memoranda, and a memorandum prepared by Michael J. Pekula, ATI's director of consumer affairs, on June 26, 2006 (the "Pekula Memorandum") into evidence at trial. For the following reasons, I grant Baker's motions in limine because the recordings and memoranda constitute inadmissible hearsay.
On July 11, 2003, ATI entered into a franchise agreement with Baker to allow Baker to operate an AAMCO Transmission Center (the "Center") in Tallahassee, Florida. ATI conducted a series of undercover customer visits, or "shoppings," at the Center. Undercover "shoppers" presented a vehicle with an "induced malfunction" to the Center for repair. Immediately after leaving the Center, the shopper met an ATI investigator at a prearranged location where the investigator tape recorded the shoppers' recollection of the transaction. The investigators sent the recordings to ATI's department of consumer affairs, where transcripts were created and labeled "debriefing memoranda." After the investigation, ATI's field investigators prepared detailed memoranda, referred to as "shopping memoranda," of what occurred during the shopping investigation.
On June 26, 2006, Pekula created a memorandum to "file" regarding Baker's Center in Tallahassee, Florida. See Defendant Mark E. Baker's Memorandum of Law in Support of Motion in Limine (Doc. No. 69) at Exhibit B, AAMCO Transmissions, Inc. v. Baker, No. 06-5252 (E.D. Pa. filed Dec. 5, 2008). The memorandum details the undercover shoppings, including statements made by Baker, as recounted by the shoppers and investigators, and customer feedback, including complaints by customers about their experience with the Center. See id. In preparing the memorandum, Pekula reviewed the shopping memoranda created by the investigators, "customer complaint files, notes in the files, [and] documents available to [him] regarding the center." See id., at Exhibit C, at 257:9-14 [hereinafter "Dep. of Michael J. Pekula"].
As a result of the investigations, ATI terminated the franchise agreement based on its belief Baker had failed to deal fairly and honestly with the public. Baker challenges the accuracy of the undercover investigations and argues ATI improperly terminated the franchise agreement. When Baker did not close the Center after ATI terminated the franchise agreement, ATI brought this trademark infringement, unfair competition, and breach of contract action against him. Baker filed a counterclaim alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional interference with existing or prospective contractual relationships.
Baker seeks to preclude the admission of audio-recordings,*fn1 the debriefing memoranda, the shopping memoranda, and the Pekula Memorandum as exhibits because they contain the inadmissible hearsay statements of the shoppers, investigators, Baker, and Baker's employees. He claims the Pekula Memorandum also contains inadmissible hearsay statements of Baker's customers. ATI argues each item falls within the business records exception, see Fed. R. Evid. 803(6), the audio-recordings constitute present sense impressions excepted from the hearsay rule, see id. at R. 803(1), all statements attributed to Baker or his employees constitute non-hearsay admissions, see id. at R. 801(d)(2)(A), and the Pekula Memorandum constitutes a recorded recollection, see Fed. R. 803(5). Alternatively, ATI argues the audio-recordings, and the debriefing and shopping memoranda are admissible because they fall within Rule 807, the residual exception to the hearsay rule. See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion in Limine to Exclude Various Listed Documents Concerning the Investigation of Defendant's Fromer AAMCO Center (Doc. No 73). at 9, AAMCO Transmissions, Inc. v. Baker, No. 06-5252 (E.D. Pa. filed Dec. 5, 2008) [hereinafter Plaintiff's Response].
An out-of-court statement offered for the truth of the matter asserted is inadmissible unless it falls into one of the enumerated hearsay exceptions found in Federal Rules of Evidence 803 and 804, satisfies the residual hearsay exception in Rule 807, or is considered non-hearsay by Rule 801(d). See Fed. R. Evid. 801 & 802. ATI, the proponent of the evidence, has the burden of establishing its admissibility. See Pittsburgh Press Club v. United States, 579 F.2d 751, 758 (3d Cir. 1978).
It is important to understand how the records are relevant to prove an issue in this case. Here, ATI seeks to use the records, and the statements therein, to prove Baker engaged in unfair and dishonest business practices during the transactions described in the records. Thus, the outof-court statements are offered to prove the truth of the matter asserted and constitute hearsay unless excepted by the Rules, or are considered non-hearsay by Rule 801(d).
Rule 803(6) provides that the following is not excluded by the hearsay rule: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make that memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness . . . unless the source of the information or the method or the circumstances of preparation indicate a lack of trustworthiness.
As a threshold matter, the proponent of the documentary evidence must establish the source of the contested information, that is, (1) the author of the document had personal knowledge of the matters reported; (2) the information he reported was transmitted by another person who had personal knowledge, acting in the course of a regularly conducted activity; or (3) it was the author's regular practice to record information transmitted by persons who had personal knowledge. See Missimer v. Tiger Machine Co., No. 04-3443, 2005 WL 3968133, at *2 (E.D. Pa. Sept. 28, 2005). In addition, the proponent must establish the information was kept in the regular course of ATI's business, and it was ATI's regular practice to prepare such reports. See Fed. R. Evid. 803(6); United States v. Pelullo, 964 F.2d 193, 200 (3d Cir. 1992) (for business record exception to apply, proponent must establish "(1) the declarant in the records had personal knowledge to make accurate statements; (2) the ...