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2. Business Record
In order to constitute a business record admissible under
Fed. R. Evid. 803(6), the record (report) must be “kept in the
course of a regularly conducted business activity,” and it must
be “the regular practice of that business activity” to make that
report. Fed. R. Evid. 803(6). Respondent argues that the
affidavit is inadequate to show that the valuation report was
kept in the regular course of a business activity of Vancom
Holdings, Inc.’s, or that it was the regular practice of the
business to make that kind of report. We need not decide whether
the affidavit is adequate to that purpose or not, since, even if
we were to decide that it is, we would exclude the report from
evidence unless, along with the report, petitioner offered the
author of the report for cross-examination.
3. Expert Testimony
By its own terms, the valuation report expresses an opinion
as to the fair market value of Vancom, Inc. (not Vancom Holdings,
Inc.) on December 31, 1994. Also by its own terms, it reflects
the author’s “professional judgment” and is prepared “in
conformance with the ‘Uniform Standards of Professional Appraisal
Practice’”. Clearly, the author has relied on specialized
knowledge in reaching the valuation conclusions expressed in the
report. For that reason, if the report were offered as evidence
of the fair market value of Vancom, Inc., it would not be
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Last modified: May 25, 2011