Facts: Husband and Wife are the parents of one child. Wife was primarily a stay-at-home mother for seven years of this 13-year marriage.

Their divorce involved issues of parenting, property division, and alimony. So, Wife’s income and earning capacity were at issue.

One of Husband’s theories at trial was that Wife took significant money from business accounts to pay her personal expenses, thus lowering her net income.

While cross-examining Wife, Husband’s attorney tried to introduce summaries that purported to analyze Wife’s business checking accounts and to distinguish personal from business spending. Wife’s attorney objected, and the trial court denied the documents because Husband could not lay a foundation. The documents were marked for identification, but Husband did not make an offer of proof.

The trial court set the parenting plan, divided the marital property, and awarded Wife transitional alimony and part of her attorney’s fees.

Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Rule 1006 of the Tennessee Rules of Evidence says:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals or duplicates shall be made available for examination or copying, or both, by other parties at reasonable times and places. The Court may order that they be produced in court.

Rule 1006 operates as an exception to the best evidence rule by letting a party admit into evidence a summary of originals rather than the burdensome production of “voluminous writings, recordings, or photographs which cannot conveniently be examined in court.” For the summary to be admissible, the party seeking admission must lay the proper foundation: testimony that (1) the original evidence is voluminous and (2) the summary is sufficiently accurate in representing the original evidence.

The Court found no error from the trial court:

Here, the proffered summaries purport to analyze Wife’s business checking accounts and to distinguish personal from business expenditures. At trial, Husband’s counsel attempted to admit them through Wife’s testimony but was unable to lay a foundation. When Husband’s attorney suggested that he would be able to introduce the summaries through Husband’s testimony, the trial court cautioned:

THE COURT: It’s unlikely that [Husband] has personal knowledge to specifically testify as to each of these purchases [outlined in the summaries], so…

HUSBAND’S ATTORNEY: Don’t disagree. The only thing that I would ask him to do—for example, he went through and what he highlighted is every time there is an Arby’s, Kroger, that type of thing, we are—

THE COURT: And to the extent that he doesn’t know whether that was a business lunch for her staff or her running out to get something for [the children], unless he has personal knowledge of it, he will not be allowed to testify as to the classification of it…. It’s speculation on his part. He’s not—he wasn’t there when these items were spent. You know, you can argue … What you want in the end as to any inferences this Court should take from the spending.

HUSBAND’S ATTORNEY: Sure.

THE COURT: [Wife has] acknowledged it’s not all business, but he doesn’t get to just go through her bank statements and testify with certainty, which he doesn’t have, as to how it should be classified.

Despite Husband’s attorney’s indication that he would attempt to introduce the summaries through Husband’s testimony, our review of that testimony shows that there was no attempt to do so…. Trial courts are accorded a wide degree of latitude in their determination of whether to admit or exclude evidence, even if such evidence would be relevant…. Here, there is a legitimate basis for the trial court’s decision to exclude Husband’s summaries. He did not lay a proper foundation. Accordingly, there is no abuse of discretion in the trial court’s decision.

The Court of Appeals affirmed the trial court.

K.O.’s Comment: The authoritative source on all things related to evidentiary foundations is Edward J. Imwinkelreid’s treatise, “Evidentiary Foundations.” I recommend that all trial lawyers have this in their law library (and sometimes in their trial briefcases). He lists these elements of the Rule 1006 foundation:

1. The original entries would be admissible in evidence.
2. The original entries are so voluminous or bulky that it would be inconvenient for the trier of fact to examine them. The operative verb is “examine [].” It is immaterial that the entries have already been formally admitted.
3. The witness was qualified to review the records.
4. The witness reviewed the records. According to some courts, it is sufficient if the witness is a member of the team, such as a group of accountants who reviewed the records to prepare the summary.
5. The witness’s testimony is a summary of the records. If the proponent offers a written summary, it is not merely demonstrative evidence. In federal practice, the summary is substantive evidence. Hence, the summary can be formally admitted and sent to the jury during deliberation.

He also observes that a Rule 611(a) demonstrative aid for argument may have advantages over a Rule 1006 summary. For example, a Rule 611(a) demonstrative aid can state inferences or conclusions from the underlying data. The main negative is that a Rule 611(a) aid is not substantive evidence.

Source: Hudson v. Hudson (Tennessee Court of Appeals, Middle Section, December 13, 2024).

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