The Window Washers' Witnesses

Action by the P Window Washing Company against the D Tower Company for money allegedly due P for washing the windows on D's 100-story skyscraper, the D Tower. D denies it owes P anything and disputes that the work was ever done.

As P's attorney you have found out that for a large tower like the D Tower, P assigns a window washing foreman to each floor. Several window washers, grade one, and window washers' assistants, grade two, are assigned to each foreman. As the washers and assistants wash a window, they "tick off" a square representing the washed window on a form that depicts the window arrangement for the floor on which they are working. At the end of the day the foreman collects the forms and delivers them to the area supervisor. There is usually an area supervisor for every ten floors. The area supervisors tally the number of windows washed and report this information to P's building manager. The manager turns this information over to P's bookkeeping office, where the information is fed into P's data processing equipment. For billing purposes P's computer provides a biweekly printout of the number of windows washed during that period.

You want to prove that P Window Washing Company washed 97,873 windows (the total shown by the computer printouts) on the D Tower during the period in question. How do you go about it? What foundational and procedural considerations are there? Try preparing direct examination(s) to get the proof in.

Compare Rule 803(5) and (6). How does the exception for business records relate to the exception for recorded recollection? What are the differences between the various formulations of the business records exception to the hearsay rule? Why is an exception made for such records in the first place? Do these reasons suggest limits to the exception based on type of business or record? Should the routineness of the report or the motivations of the reporter affect the admissibility of such records?