“[U]nder Rule 902(11), the authenticity of business records may be established by written declaration of the custodian provided to opposing counsel a reasonable time before trial.”
How later courts described this case
- “[U]nder Rule 902(11), the authenticity of business records may be established by written declaration of the custodian provided to opposing counsel a reasonable time before trial.”
- “Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LBC FIXED INCOME FUND I CIVIL ACTION
2020, LLC
VERSUS NO. 24-8
WATKINS HEALTHCARE SECTION "E" (3)
GROUP, LLC ET AL.
ORDER AND REASONS
Before the Court is a motion pursuant to Federal Rule of Evidence 1041 “for
Determination that Records Qualify as Business Records under Federal Rule of Evidence
803(6) and Notice of Intent to Offer Declaration under Federal Rule of Evidence
902(11),”2 filed by Plaintiff, LBC Fixed Income Fund I 2020, LLC (“LBC”). Defendants
Watkins Healthcare Group, LLC, W and W Recruiting and Staffing Solutions, LLC, and
Anieze M. Watkins (collectively referred to as “Watkins”) did not file an opposition to the
motion.
BACKGROUND
This is a suit to recover on promissory notes. LBC alleges that on March 31, 2020,
Watkins executed a first promissory note in favor of LBC, promising to pay LBC
$600,000.3 Watkins executed a second promissory note in favor of LBC, promising to pay
LBC $650,000, on April 28, 2020.4 Both notes were guaranteed by Defendants W&W
and Ms. Watkins.5 The first note is secured by mortgages in favor of LBC on two properties
in New Orleans.6 LBC alleges the payments on the notes are in arrears.7 LBC alleges the
1 FED. R. EVID. 104.
2 R. Doc. 65.
3 R. Doc. 1, pp. 3-4.
4 Id. at p. 4.
5 Id.
6 R. Doc. 23-3, pp. 2-3.
7 R. Doc. 1, p. 4.
parties agreed to six different extension agreements, dated June 30, 2021, July 30, 2021,
December 10, 2021, February 16, 2022, August 15, 2022, and September 15, 2022.8 After
Watkins failed to make payment for the month of January 2023 and failed to pay property
taxes on the properties, LBC put Watkins in default.9
On March 17, 2023, LBC filed suit in state court on three notes.10 The state court
dismissed the suit without prejudice for improper venue.11 LBC brought suit in this Court
on January 2, 2024.12 LBC asks the Court to find Watkins has breached the terms of the
two promissory notes by failing to pay the amounts due thereunder.13 LBC further asks
the Court for a judgment against both Watkins entities14 and Anieze M. Watkins,
individually, awarding to LBC all amounts due and payable under the promissory notes,
including the full amount of the principal balance, interest, other costs, and attorneys’
fees.15
On April 26, 2024, Watkins filed a countercomplaint,16 alleging (1) that LBC
committed a bad faith breach of contract, (2) that LBC violated the Louisiana Unfair
Trade Practices Act (“LUTPA”),17 and (3) that Watkins is entitled to a declaratory
8 Id. Defendant Watkins disputes the validity and terms of the alleged extension agreements.
9 Id. at pp. 4-5.
10 See generally R. Doc. 23-3.
11 R. Doc. 23-2, p. 6. LBC alleged in its state court complaint that Watkins executed a third note, secured by
a mortgage, which entitled LBC to executory process on the properties as well as the principal balance,
interest, and other fees that the first two notes allowed. LBC attached a proposed order to its complaint for
a “Writ of Seizure and Sale” for Watkins’ properties. The state court judge signed the order on April 5, 2023.
On May 1, 2023, the Clerk of Court issued a Writ of Seizure and Sale of the properties. LBC alleges that
when Watkins notified LBC that the third note was never funded, LBC moved to vacate the order and the
Writ. As a result, the sheriff’s sale never occurred. On May 12, 2023, LBC amended its state court pleadings
to include only the first two notes, converting the matter to a regular proceeding.
12 Id.
13 R. Doc. 1, p. 6.
14 Watkins Healthcare Group, LLC and W and W Recruiting and Staffing Solutions, LLC.
15 Id. at pp. 6-7.
16 See generally R. Doc. 22.
17 LA. R.S. 51 § 1401 et seq.
judgment that any alleged “extension agreements” are invalid.18 LBC filed a motion to
dismiss Watkins’ LUTPA claim,19 which this Court granted as prescribed.20
On July 30, 2024, LBC filed a motion for summary judgment on all claims, arguing
that there is no dispute of material fact that Watkins confirmed the outstanding balance
owed to LBC and subsequently breached the agreements by failing to pay the amounts
owed.21 In opposition to the motion, Watkins disputed 1) the authenticity of the
promissory notes, 2) the authenticity of Anieze Watkins’ signature, and 3) the balance
owed under the notes.22 After holding oral argument, the Court denied the motion.23 The
case is set for a two-day bench trial on November 20, 2024.
LEGAL STANDARD
Federal Rule of Evidence 104(a) provides: “[t]he court must decide any
preliminary question about whether a witness is qualified, a privilege exists, or evidence
is admissible.”24 “Evidence is relevant” if “it has any tendency to make a fact . . . of
consequence in determining the action” “more or less probable than it would be without
the evidence.”25 “Evidence which is not relevant is not admissible.”26 Neither is “hearsay,”
which is defined as an out-of-court statement “offer[ed] in evidence to prove the truth of
the matter asserted in the statement.”27 “[E]vidence should not be excluded before trial
unless it is clearly inadmissible on all potential grounds.”28 Instead, courts should reserve
18 R. Doc. 22, pp. 5-6.
19 R. Doc. 23.
20 R. Doc. 38.
21 R. Doc. 41.
22 See R. Doc. 42.
23 R. Doc. 61.
24 FED. R. EVID. 104; see Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“Preliminary questions
concerning . . . the admissibility of evidence shall be determined by the court.”).
25 FED. R. EVID. 401 (emphasis added).
26 FED. R. EVID. 402.
27 FED. R. EVID. 802 (providing “hearsay” is inadmissible); FED. R. EVID. 801 (defining “hearsay”).
28 Rivera v. Robinson, 464 F. Supp. 3d 847, 853 (E.D. La. 2020) (quoting Auenson, 1996 WL 457258, at
*1)).
evidentiary rulings until trial so that questions as to the evidence “may be resolved in the
proper context.”29 The Court ‘maintains great discretion [as to] evidentiary
determinations.’”30
LAW AND ANALYSIS
In its motion, LBC seeks a “preliminary determination, as authorized by Federal
Rule of Evidence 104, of the admissibility of evidence,” namely, the promissory notes and
guarantees, “pursuant to the business records exception to the hearsay rule, Rule 803(6)
of the Federal Rules of Evidence.”31 LBC also argues that, as provided in Rule 803(6)(D),
the “authenticity of the records in question may be established through certification
obtained from the custodian of records,” which is set forth in Rule 902(11).32 LBC attaches
to its motion a “Declaration of Southern Title, Inc. in Compliance with Federal Rule of
Evidence 902(11).”33
LBC argues that the promissory notes filed into the record in LBC’s complaint34
are “true and authentic business records which obviate the need to call Mr. [Deryle]
Bourgeois35 [as records custodian] at trial to authenticate these records.”36 LBC argues
that the records fall into the business record exception to hearsay because “they were
made at or near the time of the occurrence of the matters contained therein, kept in the
course of the regularly conucted activity, and created as a regularly conducted activity.”37
29 Auenson, 1996 WL 457258, at *1.
30 Jackson v. State Farm Fire & Cas. Co., 656 F. Supp. 3d 676 (W.D. La. 2023) (quoting Parker v. John W.
Stone Oil Distributors, L.L.C., 18-3666, 2019 WL 5212285, at *2 (E.D. La. Oct. 16, 2019)).
31 R. Doc. 65, p. 1.
32 R. Doc. 65-2, p. 3.
33 See R. Doc. 65-3.
34 LBC references the promissory notes filed into the record at R. Docs. 1-1 and 1-3, and the guarantees filed
into the record at R. Docs. 1-2 and 1-4. These records are attached to the motion at R. Docs. 65-4, 65-6, 65-
6, and 65-7.
35 LBC represents that Mr. Bourgeois is present of Southern Title, Inc., the title agency that closed the two
loans at issue. R. Doc. 65-2, p. 1.
36 R. Doc. 65 at pp. 1-2.
37 R. Doc. 65-2, p. 4.
LBC argues to the sworn declaration provided by Mr. Bourgeois under penalty of perjury
that the records of the promissory notes are true and authentic business records under
the evidence rules.38 LBC requests that the Court enter an order finding that the records
from Southern Title, Inc. are admissible as business records without the need to call a
foundational witness.39
Watkins did not file an opposition to the motion.
I. The records attached to LBC’s motion, including the records of
the promissory notes and guarantees, are admissible and self-
authenticating pursuant to Rules 902(11) and 803(6).
LBC seeks to admit as business records copies of the two loans and guarantees at
issue that were “furnished by the records custodian at Southern Title, Inc., the title agency
that closed the two (2) loans at issue.”40 Federal Rule of Evidence 803 provides the
business records exception to the rule against hearsay at Rule 803(6) for “Records of a
Regularly Conducted Activity.”41 803(6) states
(6) Records of a Regularly Conducted Activity. A record of an act,
event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information
transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not for
profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of
trustworthiness.42
38 Id. at pp. 1-2.
39 Id. at p. 6.
40 See generally R. Doc. 65.
41 FED. R. EVID. 803(6).
42 Id.
LBC seeks not just to admit these documents as business records, but to admit them
without the need to call an authenticating witness at trial.43 As referenced in Rule
803(6)(D), Rule 902 covers “Evidence that is Self-Authenticating” that “require[s] no
extrinsic evidence of authenticity in order to be admitted.”44 Rule 902(11) provides:
(11) Certified Domestic Records of a Regularly Conducted
Activity. The original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)-(C), as shown by a certification of the
custodian or another qualified person that complies with a federal statute
or a rule prescribed by the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of the
intent to offer the record — and must make the record and certification
available for inspection — so that the party has a fair opportunity to
challenge them.45
“Together, Rules 803(6) and 902(11) eliminate the need to incur the expense and
inconvenience of producing time-consuming foundation witnesses.”46 Therefore, LBC
must show that, by certification of the custodian or another qualified person, the records
of the promissory notes and guarantees (A) were made at or near the time by or from
information transmitted by someone with knowledge, that (B) the record was kept in the
course of a regularly conducted activity of a business, organization, occupation, or calling,
and (C) making the record was a regular practice of the activity.47 “[A] qualified witness
is one who can explain the record keeping system of the organization and vouch that the
requirements of Rule 803(6) are met,” which requires the witness to be “familiar with the
record keeping procedures of the organization.”48 In the Fifth Circuit, “certificates from a
records custodian that ‘track the language of Rule 803(6) nearly word for word’ render
43 R. Doc. 65, pp. 1-2.
44 FED. R. EVID. 902.
45 FED. R. EVID. 902(11).
46 United States v. Jones, No. CR 15-174, 2016 WL 10704381, at *2 (E.D. La. Feb. 17, 2016) (quoting FED.
R. EVID. 803, Advisory Committee Notes to 2000 Amendment).
47 See FED. R. EVID. 803(6).
48 Weinhoffer v. Davie Shoring, Inc., 23 F.4th 579, 583 (5th Cir. 2022).
the records self-authenticating.”49 Finally, Rule 902(11) requires that LBC provide
reasonable written notice to opposing counsel of the intent to admit the records before
trial.50
LBC provides a declaration from the President and custodian of Southern Title,
Inc., Mr. Deryle Bourgeois.51 In the declaration, Mr. Bourgeois attests that he is
“knowledgeable of Southern Title’s record keeping,” that he “has access to the business
records identified,” and that he is “knowledgeable regarding the way business records are
created by Southern Title.”52 Mr. Bourgeois attests that the documents are “true and
accurate copies of original business records created and maintained by Southern Title.”53
Mr. Bourgeois further certifies in his declaration that the records were “(a) made at or
near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters; (b) kept in the course of
Southern Title’s regularly conducted activity; and (c) made by Southern Title’s regularly
conducted activity as a regular practice.”54 LBC filed its motion, certification, and the
pertinent records on the record on November 1, 2024 in order for Watkins to have a “fair
opportunity to challenge [the records].”55
The Court is persuaded the LBC has met the requirements of Rule 902(11) and Rule
803(6)(A)-(C). The Court finds that Mr. Bourgeois, as president and records custodian of
Southern Title, Inc., is a custodian and/or a qualified person to attest to the authenticity
49 United States v. Ayelotan, 917 F.3d 394, 402 (5th Cir. 2019), as revised (Mar. 4, 2019) (citing Wilson v.
Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1991)).
50 United States v. Daniels, 723 F.3d 562, 579 (5th Cir.), on reh'g in part, 729 F.3d 496 (5th Cir. 2013)
(“[U]nder Rule 902(11), the authenticity of business records may be established by written declaration of
the custodian provided to opposing counsel a reasonable time before trial.”).
51 R. Doc. 65-3.
52 Id. at p. 1.
53 Id.
54 Id. at pp. 1-2.
55 See FED. R. EVID. 902(11).
of the records. Mr. Bourgeois’s certification declares that the requirements of Rule
803(6)(A)-(C) are met.5° LBC, by filing the instant motion and attachments on the record
twenty days before trial, provided Watkins with a reasonable time to inspect the records
and contest their authenticity.57 The documents attached to LBC’s motion are self-
authenticating and admissible at trial as records of a regularly conducted activity.5®
Accordingly;
CONCLUSION
IT IS ORDERED that the Motion is GRANTED. The attached records59 from
Southern Title, Inc., will be admissible as business records at trial pursuant to Rules
902(11) and 803(6), without the need to call a foundational witness.
New Orleans, Louisiana, this 11th day of November, 2024.
> SUSIE M ORGS ~
UNITED STATES DISTRICT JUDGE
56 See United States v. Ayelotan, 917 F.3d 394, 402 (5th Cir. 2019), as revised (Mar. 4, 2019) (citing Wilson
v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1991)) (“[C]ertificates from a records custodian that
‘track the language of Rule 803(6) nearly word for word’ render the records self-authenticating.”).
57 See FED. R. EVID. 902(11). Watkins does not oppose the instant motion.
58 See United States v. Sterling, 550 F. Supp. 3d 358, 361-62 (M.D. La. 2021) (admitting records
accompanied by certifications from records custodians that met the standards set forth in Rule 902(11) and
Rule 803(6)(A)-(C)).
59 R, Docs. 65-4, 65-5, 65-6, 65-7.