Commercial Litigation and Arbitration

Inadmissibility of Bankruptcy Examiner’s Report

In re Refco Inc. Secs. Litig., (Krys v. Sugrue), No. 07-MD-1902 (S.D.N.Y. Mar. 11, 2013) (Report and Recommendation of Special Master Daniel J. Capra):

[A] Bankruptcy Examiner’s report is hearsay when offered, as here, to prove the truth of the facts and conclusions propounded in it. And courts routinely find that there is no hearsay exception that would permit a Bankruptcy Examiner’s report to be admitted into evidence. A Bankruptcy Examiner’s report is not a business record under Rule 803(6) because it is not “kept in the course of a regularly conducted activity”; and it is not a public record under Rule 803(8) because it is not a “record of statement of a public office.” See, e.g., In re Rickel & Assocs., Inc., 272 B.R. 74, 87-88 (Bankr. S.D.N.Y. 2002) (“The Examiner conducted an investigation, but he was not charged—nor could he be—with the duty to ‘hear and determine’ any claims in this case” and so the report was inadmissible hearsay; also noting that “A hearsay affidavit is a nullity on a motion for summary judgment”). While bankruptcy courts “routinely consider and rely on the testimony and reports of examiners .... an examiner's report is ... not intended to establish evidence.” In re Fibermark, Inc., 339 B.R. 321, 325 (Bankr.D.Vt.2006) (citation omitted); In re Granite Broad. Corp., 369 B.R. 120, 129 (Bankr.S.D.N.Y.2007) (“The Court recognizes ... that the Examiner's conclusions are not based on a full factual record and are technically hearsay.”).

Even without regard to the hearsay rule, the Examiner’s Report itself indicates that is it not to be used as proof of a fact in any litigation. The Report states that it “should not be taken as admissions or findings for or against any person or entity.” ... As the court in Fibremark, supra, stated, a bankruptcy examiner’s report puts “the story on paper and provides a context for debate” but it is for the parties “to formulate a fuller version of the debate using the rules of evidence.”

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