INSTRUCTIONS FOR FORMS 37 AND 38

Records of a regularly conducted activity, often business records, may be admissible by affidavit if Colorado Rules of Evidence 902(11) or 902(12) are followed. Forms 37 and 38 provide a means to comply with the requirements of CRE 902(11) and 902(12) to allow the admission of the records of a regularly conducted activity (otherwise known as business records). These forms are not the exclusive means of complying with the rules and parties may use other forms of certification and written notice, so long as they comply with the requirements of the rules.

Form 37

Form 37 should be completed by the person in charge of the records at the business or organization, or by another person who is familiar with how the records are kept. It must be notarized. If the business or organization does not have a notary, it may be necessary to find a notary who can notarize the signature on the affidavit, such as a notary willing to go to the business or organization.

Form 37 may be provided to the business or organization at the time records are requested, in person, by letter, or by subpoena. The form may then be completed at the time the records are provided. However, completion of the form is voluntary and the business or organization may refuse.

If a party desires a business or organization to complete Form 37 after the documents have been provided, it may be necessary to give the business a copy of the documents, so it can verify exactly what was earlier provided.

Form 37 calls for a description of the documents being certified. This description may be brief, such as: “medical records;” “architects notes and blue prints;” or “repair estimates.” A Bates number range may be used as a description, so long as it allows the attached documents to be identified.

The subject matter of the documents is the person, place, or thing that the documents are about. This would be the patient the “medical records” are for; the address the “architect notes” apply to; or the car the “repair estimate” applies to. The number of pages should be included to assist in identifying what records are certified by the affidavit.

Form 37 calls for a date range for the documents. This is to assist in determining what specific documents have been certified. If the documents are undated, and the date range cannot be ascertained, then this may be left blank.

The completed Form 37 must accompany the documents when they are offered at trial or a hearing.

Form 38

CRE 902(11) and 902(12) require advance notice if documents will be offered into evidence through a certification of the records. Form 38 provides a means to provide this notice.

Form 38 should list each record that may be offered through a certification, unless all records may be offered in this manner, in which case Form 38 may state “all records.” By way of example, the records may be listed by name or description, Bate’s number, or trial exhibit number.

Both the records to be offered and the certifications must be provided to all adverse parties, or at least made available for inspection and copying. If the records or certifications have not already been provided, they should be attached to Form 38 or be made available for inspection and copying. The serving party need only attach those records and certifications that have not already been provided.

Form 38 must be served on all adverse parties before of the use of the records at a trial or hearing. For the sake of simplicity, it may be desirable to serve all parties, and not just all adverse parties. The service must be sufficiently in advance of the trial or hearing that the adverse parties may prepare to address the documents.

What constitutes sufficient advance notice is decided on a case-by-case basis. But Form 38 should be served sufficiently in advance of the trial or hearing that the adverse parties have an opportunity to raise any concerns with the court and to subpoena witnesses to testify about the documents if they so desire.