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Fambrough v. Wal-Mart Stores, Inc. - 611 F. App'x 322 (6th Cir. 2015)


To be admissible under Fed. R. Evid. 803(6), a record must meet the following four requirements: (1) it must have been made in the course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have made the memorandum; and (4) the memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. This information must be presented through the testimony of the custodian or other qualified witness.


This case arises out of six separate ATM transactions in Tennessee and Mississippi. The individual ATM Users filed an amended consolidated complaint on behalf of themselves and others similarly situated in the Western District of Tennessee. The six ATM Users each individually alleged that either Wal-Mart or Cash Depot violated 15 U.S.C. § 1693 et seq., known as the Electronic Fund Transfer Act (EFTA), when the defendants failed to place exterior fee notices on the ATMs used by the ATM Users.

Although the relevant portion of the EFTA was subsequently amended, at the time this cause of action arose it required ATM operators to post both an "on-machine" fee notice and an "on-screen" fee notice. 15 U.S.C. § 1693b(d)(3)(B)(i) & (ii) (2010)12 C.F.R. § 205.16(c) (2001).2 A fee notice alerts ATM users who withdraw cash that a fee will be charged. Under the EFTA, the safe harbor defense relieves defendants of liability if they posted the required notice and if the notice was later removed, damaged, or altered by a third party. 15 U.S.C. § 1693h(d).

The district court ultimately granted summary judgment in favor of Wal-Mart and Cash Depot and concluded that: (1) the records fell within the business records exception of Fed. R. Evid. 803(6); (2)  Lam and Heiser qualified as "other required witnesses" to authenticate the business records; (3) Lam and Heiser testified with personal knowledge by virtue of their positions in the defendant companies; and (4) Wal-Mart and Cash Depot established the safe harbor defense based on the business records and Lam's and Heiser's declarations and depositions, particularly since the ATM Users failed to point to any material facts to negate such evidence.

The ATM Users now appeal and argue that the district court erred by: (1) considering the records produced by Wal-Mart and Cash Depot as business records without proper authentication; (2) relying on Lam's and Heiser's declarations and depositions that were not based on personal knowledge; (3) granting summary judgment in favor of the defendants based on the safe harbor defense in the absence of evidence affirmatively proving vandalism of the ATMs in question; (4) purportedly drawing inferences in favor of the defendants on summary judgment; and (5) allowing the defendants to assert both the safe harbor defense and the "bona fide error" defense.


Whether the evidence was admissible to support a motion for summary judgment.




Evidence relating specifically to whether the particular ATMs in question were equipped with the exterior notice requirements under the federal Electronic Fund Transfer Act, 15 U.S.C.S. § 1693 et seq., was not based on the members' personal knowledge, but rather on their review of the unauthenticated business records. The purported business records were not properly authenticated, and thus, testimony based upon them was not admissible under Fed. R. Evid. 803(6).

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