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sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to
challenge them.
The notice requirement contemplates that a proponent of evidence
provide not only the records which he seeks to introduce but also
the declaration of the custodian “sufficiently in advance of
their offer into evidence”.12
We find that respondent has met the notice requirement. He
provided written notice to petitioner of the possibility of his
introducing evidence under Fed. R. Evid. 803(6) and 902(11) on
February 7, 2002, more than 2 weeks before trial. He identified
the declarants, the payors involved, and the underlying records
that might be introduced through the affidavits. Petitioner was
adequately apprised of this information in advance of trial.
Petitioner had sufficient time to contact the witnesses named in
respondent’s trial memorandum, and she could have called those
witnesses to testify at trial.
Respondent provided the affidavits and the records to
petitioner 2 and 3 days before trial. Given the nature of the
affidavits and the records involved, petitioner had sufficient
time in which to review those documents and to formulate
challenges to their veracity. The affidavits and the records
12The Advisory Committee’s Note to Fed. R. Evid. 902(11)
states that “The notice requirement * * * is intended to give the
opponent of the evidence a full opportunity to test the adequacy
of the foundation set forth in the declaration.”
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