author: HENNESSY, J.

text:
    TIMOTHY P. TAFT ET AL. v. WHEELABRATOR PUTNAM, INC., ET AL.
    (AC 18064)
    Foti, Hennessy and Dupont, Js.
    Argued February 17
    officially released October 19, 1999

      Ernest J. Cotnoir, for the appellants (plaintiffs).

      Charles L. Howard, with whom were Joseph P. Williams and, on the brief, John E. Wertam, for the appel-lee (named defendant).

      William H. St. Onge, for the appellee (defendant zoning commission of the town of Putnam).

       Pursuant to the order of the Supreme Court dated December 26, 2000, the judgment of the Appellate Court dated October 19, 1999, was vacated and the plaintiffs' original appeal was dismissed for lack of aggrievement. See Taft v. Wheelabrator Putnam, Inc., 255 Conn. 916, 763 A.2d 1044 (2000).

   Opinion

HENNESSY, J.

The plaintiffs, Timothy P. Taft, Robert G. Viens, J. Robert Viens and Marguerite G. Viens, appeal from the judgment of the trial court rendered on the granting of motions to dismiss for lack of subject matter jurisdiction filed by the defendants, Wheelabrator Putnam, Inc. (Wheelabrator), and the zoning commission of the town of Putnam (commission). The plaintiffs claim that the court improperly determined that it lacked subject matter jurisdiction. The court determined that Special Acts 1997, No. 97-6, § 6 (c), cured any defect in the commission’s notice of its decision and, therefore, the plaintiffs’ action did not fall within any exception to the rule that an aggrieved party must appeal from an administrative agency decision rather than bring an independent action. We reverse the judgment of the trial court.

The plaintiffs’ complaint, filed in September, 1997, alleged that the plaintiffs owned real estate adjoining a parcel leased by Wheelabrator. In August, 1996, Wheelabrator applied to the commission for a special use permit to construct and operate an ash landfill on the property. The plaintiffs alleged that the commission’s notice of the public hearing incorrectly referred to Wheelabrator’s property as lot 7 on assessor’s map 20T even though that lot was not owned by the parties to this action. The commission, after holding the public hearing, approved the special use permit on September 18, 1996. The plaintiffs further alleged that the commission’s notice of decision, published on October 29,1996, was published later than the fifteen days required by General Statutes § 8-3c (b) and incorrectly referred to the property as lot 7. The plaintiffs allege that the commission’s granting of the permit adversely affected the value and the use and enjoyment of their property. The plaintiffs filed this action seeking (1) a declaratory judgment that the commission’s decision granting the special permit was null and void because of the defects in the notice of the hearing and because of the untimely and defective publication of the decision and (2) to enjoin the defendants from erecting or operating the ash landfill.

Each defendant thereafter filed a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction because § 6 (c) of Special Act 97-6 validated the commission’s decision, regardless of the defects in notice and, therefore, the plaintiffs should have filed an administrative appeal rather than an independent action. The plaintiffs objected, arguing that the validating act goes to the merits of the action rather than to the court’s jurisdiction to hear the case. The trial court granted the defendants’ motions, concluding that it lacked subject matter jurisdiction because Special Act 97-6 cured the defective notice and, therefore, the plaintiffs should have brought an administrative appeal rather than a declaratory judgment action.

On appeal, the plaintiffs claim that the trial court improperly granted the defendants’ motions to dismiss for lack of subject matter jurisdiction. The plaintiffs argue that the validating act did not cure the defective notice because (1) the commission’s failure to provide proper notice of the public hearing and the decision granting the special use permit rendered that decision null and void, (2) the defendant was required under § 6 (c) of Special Act 97-6 to provide proper notice, (3) the appeal period never was triggered, as required by § 6 (c) of Special Act 97-6, due to the improper notice and (4) the validating act could not cure defects “both as to timing and content in both the published notices of public hearing and decision.”

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs’] claim.” (Citations omitted; internal quotation marks omitted.) Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998). “We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

General Statutes § 8-9 provides that “[a]ppeals from zoning commissions and planning and zoning commissions may be taken to the Superior Court and, upon certification for review, to the Appellate Court in the manner provided in section 8-8.” “[Wjhere a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test.” (Internal quotation marks omitted.) LaCroix v. Board of Education, 199 Conn. 70, 78, 505 A.2d 1233 (1986).

“Declaratory judgment proceedings are appropriate for determining the validity of the regulations of an administrative agency. . . . [Declaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency’s decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal. . . . Cases in which an action for declaratory or injunctive relief can be maintained include those where an agency lacks jurisdiction due to defective notice, where statutory authority has been exceeded, or where the validity of a statute or ordinance is attacked.” (Citations omitted; internal quotation marks omitted.) Young v. Chase, 18 Conn. App. 85, 91, 557 A.2d 134 (1989).

The plaintiffs claim that the trial court improperly dismissed their action for lack of subject matter jurisdiction. Specifically, the plaintiffs claim that § 6 (c) of Special Act 97-6 cannot cure the defects in notice because the commission’s failure to provide timely and proper published notice rendered the commission’s decision null and void, and the act could not validate an otherwise invalid action. We agree.

Section 6 (c) of Special Act 97-6 validates certain actions that otherwise would be valid except for certain technical omissions and irregularities. Section 6 (c) of Special Act 97-6 provides in pertinent part: “Any and all actions taken by any planning commission, zoning commission, planning and zoning commission, zoning board of appeals . . . otherwise valid except that said planning commission, zoning commission, planning and zoning commission, zoning board of appeals . . . failed to comply with the requirement or requirements of any general or special law, ordinance or regulation governing the contents, giving, mailing, publishing, filing or recording of any notice, either of the hearing or of the action taken, is validated, provided no such action shall be validated if an appeal from such action is pending in any court or the time for taking such appeal has not expired as of the effective date of this act.”

“In interpreting the act and its applicability provisions, we adopt a functional approach. The function of the statute is to cure defects in notice not attacked by timely court proceedings, and to allow parties challenging such defects by timely court action to continue the judicial process.” Young v. Chase, supra, 18 Conn. App. 97-98. “The legislature has the power to cure, by retroactive enactment, a party’s failure to comply with a procedural statutory requirement, provided that two conditions have been met. First, the legislative enactment must address a procedural requirement that the legislature had the right to alter prospectively. Second, the enactment’s retroactive application must not operate in a manner that would unjustly abrogate vested rights.” Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986).

We conclude that the trial court improperly dismissed the plaintiffs’ action for lack of subject matter jurisdiction. “Failure to publish a notice of decision within the applicable time constraints renders the decision of a zoning commission void.” Cardoza v. Zoning Commission, 211 Conn. 78, 81, 557 A.2d 545 (1989).

In Akin v. Norwalk, 163 Conn. 68, 301 A.2d 258 (1972), the defendant submitted to the planning commission of Norwalk an application for approval of a preliminary subdivision plan. The planning commission approved the subdivision plan and then referred it to the city’s common council, which, acting in its capacity as the city’s final planning authority, unanimously approved the subdivision on May 14, 1969, but did not publish notice of its decision until August 14, 1969, well beyond the ten day period prescribed for publishing notice pursuant to General Statutes § 8-28. Id., 72. On appeal, the plaintiffs argued that the common council’s action in approving the subdivision plan was null and void because its notice was untimely. Id. Our Supreme Court agreed with the plaintiffs, concluding that timely publication of notice is a mandatory requirement under the statute that is “a matter of substance and of the essence of the thing to be accomplished, not a matter of mere procedure or convenience. Having failed to comply with this mandatory requirement within the allotted ten-day period, we hold the council’s decision to be null and void.” Id., 74.

The Akin court, in coming to its conclusion that the requirement of § 8-28 that an agency timely publish notice of its decision is a matter of substance, reasoned that failing to publish notice in a timely manner would negatively affect an aggrieved party’s right to appeal. “A statute which requires notice of a decision of a commission to be published so that aggrieved persons may determine whether they should appeal, and which, in fact, authorizes [an] . . . appeal period to commence from the date of publication goes to the essence of the thing to be accomplished. Failure to publish notice of a decision would prevent the appeal period from running, thereby causing unwarranted and undesirable delay, results which we do not find the legislature could reasonably have intended. [A] statute . . . fixing a rather brief time within which an appeal may be taken to the courts is designed not only to afford protection to an aggrieved person but also to secure, in the public interest, a speedy determination of the issues involved. ... It would therefore be unreasonable to give [the statute] a meaning which would open the appeal process to delays flowing from any of the many factors which could cause a notice, seasonably given, to be long delayed in reaching the prospective appellant.” (Internal quotation marks omitted.) Id., 73-74.

Similarly, in Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 311 A.2d 77 (1972), the town’s zoning board of appeals, on September 25, 1969, granted a variance but did not publish its decision until October 6, 1969, one day after the ten day period for timely publication had expired. Id., 387. The trial court sustained the plaintiffs appeal from the board’s decision because the board, in granting the variance, acted illegally and arbitrarily. Id., 382. Our Supreme Court affirmed the trial court’s decision and further concluded that under Akin, the trial court could have sustained the appeal on the alternative ground of untimely publication of notice of the board’s decision because the ten day period of General Statutes §§ 8-7 and 8-8 had expired. Id., 386-88.

In the present case, we will adopt the reasoning of the Akin and Hyatt courts to conclude that the fifteen day publication of notice requirement of § 8-3c (b) is not a matter of procedure or convenience. It is substantive. The fifteen day appeal period commences on the date of publication. General Statutes § 8-8 (b). “The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue.” (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 155-56, 676 A.2d 795 (1996). “Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985). The untimely published notice delayed the plaintiffs in the exercise of their right to appeal from the commission’s decision, which is a result that the legislature certainly did not intend. The validating act is intended to cure the failure to comply with procedural statutory requirements, not substantive statutory requirements. Because the requirement that the commission timely publish notice is a matter of substance and not procedure, the legislature could not, through § 6 (c) of Special Act 97-6, validate the improper notice. Accordingly, we conclude that the trial court improperly dismissed the plaintiffs’ complaint for lack of subject matter jurisdiction.

The trial court relied on our decision in Young v. Chase, supra, 18 Conn. App. 85, in dismissing the plaintiffs’ action. In Young, the applicant obtained a special use permit from the local zoning authority for the construction and operation of a radio transmission tower. Id., 88. The plaintiffs failed to appeal from the granting of that permit, but later filed an independent action requesting declaratory and injunctive relief. Id., 86-87. The basis for the action was that the application and notice of decision failed to mention a parcel of land on which the tower would stand. Id., 86. After that action was filed, a validating act became effective. Id., 98. The defendants moved to dismiss the action on the basis of the passage of the validating act, which the trial court granted. Id., 87.

We reversed the trial court’s decision, concluding that the language of the validating act rendered it inapplicable to matters already pending in court before the effective date of the act. Id., 98. Because the plaintiffs commenced the action before the validating act’s effective date, the defective notice remained uncured and the action could proceed. Id.

In the present case, however, the trial court dismissed the plaintiffs’ action because the plaintiffs commenced the action on September 10, 1997, almost five months after the effective date of Special Act 97-6, which was April 18, 1997. The court concluded that once the validating act took effect, “the irregularities regarding notice ceased to invalidate the commission’s decision. Because that decision was no longer void when the plaintiffs began this action, no exception to the rule barring such suits obtains. The failure of the plaintiffs to take an appeal as provided by § 8-8 (b) or to commence an independent action before the effective date of [the act] deprives this court of subject matter jurisdiction to adjudicate the merits of the plaintiffs’ claims.” (Emphasis added.)

In its memorandum of decision, however, the trial court inexplicably ignored the plaintiffs’ claim that the commission’s decision was published well after the fifteen day period contained in § 8-3c (b). Therefore, even if the validating act cured the commission’s improper description of the property in the notice, the validating act could not cure the commission’s failure to publish timely notice of its decision. Accordingly, we conclude that the commission’s decision was null and void and could not have been validated by § 6 (c) of Special Act 97-6. The trial court, therefore, improperly dismissed the action for lack of subject matter jurisdiction. Because our conclusion is dispositive of this appeal, we need not address the plaintiffs’ remaining claims.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants argue that we should not review the plaintiffs’ claims because they failed to preserve any of them for appeal. “Our rules of practice preclude us from considering claims of error unless they are distinctly raised at trial. See Practice Book § [60-5, formerly § 4061). Abdelsayed v. Narumanchi, 39 Conn. App. 778, 785, 668 A.2d 378 (1995), cert. denied, 237 Conn. 915, 676 A.2d 397 (1996).” (Internal quotation marks omitted.) Gill v. Diorio, 51 Conn. App. 140, 147, 720 A.2d 526 (1998). Our review of the record, however, reveals that the plaintiffs opposed the defendants’ claim that the trial court lacked subject matter jurisdiction over the action, which is sufficient to preserve their claims on appeal. Moreover, subject matter jurisdiction must be established and may be raised at any time, whether or not raised at trial.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. RALPH CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. SALVATORE P. CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. EVELYN M. CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. SALVATORE R. CARABETTA
    (AC 17871)
    Fo1i, Landau and Dupont, Js.

      Argued April 28
    officially released October 19, 1999

      Kerry M. Wisser, with whom, on the brief, was Nathan A. Schatz, for the appellants (defendants).

      James W. Oliver, with whom was Maria K. Tongas, for the appellee (plaintiff).
   Opinion

LANDAU, J.

This is ajoint appeal from four judgments of the trial court rendered after a hearing in damages awarding damages to the plaintiff Federal Deposit Insurance Corporation (FDIC) as receiver of Whitney Bank and Trust Company (Whitney), against the four individual defendants. On appeal, the defendants raise evidentiary challenges, within the parameters of General Statutes § 52-180, maintaining that the trial court improperly admitted testimonial and documentary evidence to establish the amount of their debts. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. In 1990, each of the defendants executed separate individual promissory notes (notes) in favor of Whitney and later defaulted on the notes. On April 12, 1991, Whitney was declared insolvent and was taken into receivership by the FDIC. In July, 1995, the FDIC commenced actions against each of the defendants. Although each defendant filed a disclosure of defense and a revised answer and special defense, none of the defendants pleaded payment. The trial court granted the FDIC’s motions for summaiy judgment as to liability against each defendant and held a consolidated hearing in damages. Throughout the hearing in damages, the defendants objected to the documentary and testimonial evidence offered by the FDIC to establish the amount of their debts because it was not authenticated as a Whitney business record pursuant to § 52-180. The court awarded the FDIC damages and the defendants appealed.

On appeal, the defendants claim that the trial court improperly admitted into evidence (1) exhibits three and four, computer diskettes containing information downloaded from Whitney’s computer system, (2) exhibit six, a document created by a witness from the information contained in exhibits three and four, because it contained hearsay, (3) exhibit nine for lack of authentication and (4) exhibit twelve because it was an FDIC record based on information obtained from Whitney records. Additional facts will be discussed where relevant to the defendants’ claims.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998). “[Our Supreme Court has] often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998).

I

The defendants first claim that the trial court improperly admitted exhibits three and four, which are computer diskettes containing information downloaded from Whitney’s computer system. We disagree.

The defendants’ claim fails because they do not distinguish between the diskettes themselves and the information contained on them. A diskette is only a means of storing information. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1243 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033, 104 S. Ct. 680, 79 L. Ed. 2d 158 (1984). It is not until the information on the diskettes is put before the trier of fact that it becomes necessary to authenticate the information as a business record. Because the diskettes are inanimate objects and convey no information to the trier of fact as such, they may be admitted as real evidence if they are material and relevant to the issue being tried.

In this case, Gwen Femmer, a former vice president and supervisor of operations at Whitney, testified that she personally downloaded information from the Whitney computer system onto exhibits three and four at the request of the FDIC on April 13, 1991, the day after Whitney went into receivership. Femmer tested the data on the diskettes for accuracy and kept them in her exclusive possession until shortly before she testified at trial. She also testified as to the reliability of Whitney’s computer system. “An item offered as real evidence must be positively identified as the actual item in question. This can be done by establishing unique or distinguishable configurations, marks, or other characteristics, or by satisfactory proof of the item’s chain of custody from the time of the incident to the time of trial.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 9.1.2, pp. 270-71. Through Femmer’s testimony, the FDIC laid the proper foundation necessary for the admission of the diskettes as exhibits three and four, and the court properly admitted them into evidence.

Because the defendants claim that the trial court improperly admitted into evidence exhibit six, a document, because it was created from information contained on exhibits three and four; see part II of this opinion; we must take the further step of determining whether the information contained on exhibits three and four was properly admitted into evidence. At trial, the defendants objected to exhibits three and four, claiming that there was no way for them to determine what information was contained on the diskettes or to cross-examine Femmer about the information. The court admitted exhibits three and four and permitted the information contained on them to come into evidence if the FDIC provided the defendants with a computer to visualize the information on the diskettes. The FDIC provided the defendants with a computer to visualize the data during cross-examination, but the defendants declined to use the computer.

A review of the business records exception to the hearsay rule indicates that the information on exhibits three and four was properly admitted in evidence. “Early Connecticut case law enunciated rules favoring the admissibility of business records. ... [A] shop book was admissible to prove the amount of indebtedness. . . . Such entries were admissible in proceedings involving parties other than the original debtor and creditor. . . . More recent Connecticut case law has articulated similarly modest requirements for the admission of business records under § 52-180.” (Citations omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 602, 717 A.2d 713 (1998).

“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991).

“Conformity with the statutory conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability. . . . Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact. . . . While the circumstances of the making of the [records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” (Citations omitted; internal quotation marks omitted.) State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

“We have stated that § 52-180 ‘should be liberally interpreted’ in favor of admissibility. Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485; see Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388, 461 A.2d 422 (1983). The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time period. Baumert-Moran Sales Co. v. Red, Bird Truck Rental Corp., 149 Conn. 42, 45, 175 A.2d 189 (1961).” New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 603. Also, “[t]here is no requirement in § 52-180 . . . that the documents must be prepared by the organization itself to be admissible as that organization’s business records. All that is required is that it be in the regular course of the business to make the writing or record.” (Internal quotation marks omitted.) Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475-76, 531 A.2d 177 (1987).

The liberal application of the statute is derived from the recognition that the trustworthiness of such documents comes from their being used for business purposes and not for litigation. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 190 Conn. 388-89. Thus, the fact that the business relies on such records tends to establish their trustworthiness. New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 600.

In this day and age, evidence is not inadmissible because the business record is created, stored or produced by means of computer technology. In American Oil Co. v. Valenti, 179 Conn. 349, 360-61, 426 A.2d 305 (1979), our Supreme Court determined that one who used computer records and had only an indirect role in their production was competent to testify that the records were made in the ordinary course of business. The witness’ personal knowledge goes to the weight of the evidence, not to its admissibility. Id., 357-58.

When computer records are offered as evidence, the proponent must satisfy a two part test. In addition to meeting the three requirements of the business records exception to the hearsay rule; see Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485; the proponent also must establish that the basic elements of the computer system are reliable. “Trial courts must have considerable latitude in determining the admissibility of evidence in [the area of computer generated business records] as in others. Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1190 (1976). We are not prepared to identify with precision what status in a particular company’s hierarchy a witness must have in order to be sufficiently knowledgeable to testify about computer records. Section 52-180 expressly allows business records to be admitted despite the absence of testimony from ‘the person or persons who made the writing or record, or who [had] personal knowledge of the act, transaction, occurrence or event recorded.’ This language is helpful in clarifying that it is not necessary to produce as a witness the [data entry clerk] who actually entered information into the computer or the programmer who designed the processing program.” American Oil Co. v. Valenti, supra, 179 Conn. 360. What is crucial is not the witness’ job description, but rather her knowledge of the basic elements that afford reliability and trustworthiness to computer generated data. See id., 361; SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 576-77, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998).

Here, Femmer’s testimony contained all the elements of trustworthiness required by § 52-180 and the requirements of American Oil Co. She testified that exhibits three and four contained information on the defendants’ notes as of the date Whitney failed, that it was Whitney’s regular course of business to keep records on loans, that Whitney kept records of the defendants’ notes in the regular course of business and that the records were made contemporaneously with the events concerning the defendants’ notes. Furthermore, Femmer testified that it was in the regular course of Whitney’s business to download loan information from the computer system onto diskettes at least monthly and that she was responsible for downloading the information. She supervised the data processing department at Whitney, was familiar with the hardware and software used by Whitney, had access to all the information in the computer system and found the system to be generally reliable. She also received computer training and was responsible for daily testing and balancing. Therefore, the trial court properly admitted the information contained on exhibits three and four.

II

The defendants’ second claim is that the trial court improperly admitted exhibit six, a document created from information contained on exhibits three and four, because it was based on hearsay, because it was not created as a business record but for litigation and because the FDIC improperly failed to provide the defendants with the information underlying exhibit six. We do not agree.

The following facts are necessary for our resolution of this claim. Prior to its failure, Whitney had a contractual arrangement with NCR Corporation (NCR), based in Virginia, under which NCR was to provide data processing services and storage for Whitney. In Femmer’s opinion, the data processing performed by NCR was generally reliable. Femmer downloaded exhibits three and four from computer records maintained by NCR. Exhibit six is an accrual loan download report created during trial from data contained on exhibits three and four. It is not a printout of exhibits three and four and no screen of information on either diskette would look like exhibit six. The diskettes contain eighty fields of information on each loan. Femmer testified that none of the data on exhibits three and four was changed in creating exhibit six; the data were put in a different format to make it easier to read.

The defendants claim that because exhibits three, four and six were not properly authenticated, the trial court improperly admitted exhibit six. “Authentication is ... a necessary preliminary to the introduction of most writings in evidence .... A proponent may authenticate a document by demonstrating proof of authorship of, or other connection with, [such] writings. ... In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody. . . . The requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the hearsay exception. It is generally held that business records may be authenticated by the testimony of one familiar with the books of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business.” (Citations omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 604.

As we stated in part I of this opinion, Femmer’s testimony established the basis for admitting the information on exhibits three and four as Whitney’s business records under the business records exception to the hearsay rule as well as the basis for establishing the reliability of the computer system that produced those records. The information on exhibits three and four was, therefore, properly admitted under the business records exception to the hearsay rule. See General Statutes § 52-180.

“The trustworthiness of a business record devolves from its being prepared ‘in the ordinary course of business,’ but litigation is common enough for most firms so that they must keep or prepare records in connection with present or future litigation. Although such records should be reviewed with particular care for indicia of trustworthiness, they should not be excluded solely for the reason of their nexus to litigation. Cf. State v. Jeffrey, 220 Conn. 698, 710, 601 A.2d 993 [(1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992)].” C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1999) § 11.14.3, p. 239. The fact is that the defendants defaulted on their promise to pay Whitney. It was in the ordinary course of the FDIC’s business, as receiver of the bank, to collect on the notes and it had to resort to litigation to do so. To prove its case, the FDIC had to produce evidence of the state of the notes at the time it took over Whitney. The fact that exhibit six was prepared at the time of and for this litigation was not reason to exclude it from evidence. The court properly admitted exhibit six.

Finally, the defendants claim that exhibit six was a summary and that the trial court should not have admitted it into evidence because the FDIC failed to provide them with the data underlying exhibit six as required by Elmira Roofing Co. v. Gould, 71 Conn. 629, 631-32, 42 A. 1002 (1899). The defendants’ argument is disingenuous. A review of the transcript reveals that the defendants objected to the admission of the information contained on exhibits three and four if they were not provided with a means of visualizing the information. The court admitted the information on the diskettes on the condition that the FDIC provide the court and the defendants with a computer to visualize the information. The FDIC provided a computer so that the defendants could visualize the information contained on the diskettes, but the defendants failed to make use of the computer to cross-examine Femmer. Because the defendants waived their right to cross-examine Femmer, the court properly admitted the information on exhibits three and four. For these reasons, the court properly exercised its discretion in admitting exhibit six.

Ill

The defendants’ third claim is that the trial court improperly admitted exhibit nine because it was not authenticated. We are not persuaded.

Exhibit nine is the customer master report for the defendants’ notes. Exhibit nine is dated April 15, 1991, and is a snapshot of each loan, including its account and payment history, outstanding principal balance, accumulated interest, “paid to” date and the per diem rate as of April 12, 1991, the date Whitney was placed into receivership. William Lewis, the customer services manager of NCR in charge of overseeing the services NCR provided to its bank customers, testified from personal knowledge of the contractual obligation NCR had to Whitney, that he was familiar with the NCR computer system, that he found it to be reliable generally and that it was working on or about April 15, 1991.

Mike Zitt was a loan support supervisor at NCR at the time Whitney went into receivership. Zitt received correspondence from the FDIC on April 15,1991, asking him to send the customer master reports to the former site of Whitney. The reports were delivered to his office and he personally boxed and sent them to the FDIC. Zitt was familiar with the NCR software and had personal knowledge that the computer was generally reliable and working on April 15, 1991. Zitt identified the NCR bank number assigned to the Whitney customer master reports. The format of the customer master reports was unique to NCR software. He recognized each report because of the weight, color and NCR writing on the side of the computer paper, as well as the unique fields and format.

The defendants claim that exhibit nine was not properly authenticated because neither Lewis nor Zitt could testify that the information on the printout was the same information that appeared on a computer screen on the date in question. Our law does not require such verification for business records to be admitted into evidence. The evidence shows that NCR had a business relationship with Whitney requiring it to provide data processing services. Lewis and Zitt were familiar with NCR’s computer system and its reliability. They testified about the services NCR performed for Whitney and that the customer master reports were generated from Whitney records at the request of the FDIC. Zitt identified the printout at trial as having all of the indicia that they were Whitney records produced by NCR. The witness who authenticates a business record need not have prepared the report. The witness need only testify as to his familiarity with the computer system and its reliability, that the record was produced in the regular course of business and that it was the regular course of business to produce the records for the document to be admitted properly.

IV

The defendants claim finally that the trial court improperly admitted exhibit twelve because it was an FDIC record based on information obtained from Whitney. We disagree.

Exhibit twelve was produced as evidence of the amount of debt owed by the defendants according to the FDIC’s computer system. The defendants objected to exhibit twelve, claiming that the information is hearsay from Whitney. Teresa Thurston, a technician in the accounting department of the FDIC, testified that she was familiar with the FDIC computer system, including the “LAMIS System.” She had received computer training, had the ability to access all computer screens and found the FDIC computer system to be reliable generally.

Thurston testified that exhibit twelve consisted of computer printouts of the following screens: “POFF,” payoff screen, which contained the principal balance and accrued interest on each note; “LGEN,” loan general history screen, which contained a per diem, current interest rate and “paid to” date; and “HRAP,” history recap screen, which contained interest rate change information. Thurston personally retrieved each screen and printed them out. She hand calculated the accumulated interest forward from the paid-to date to confirm that the data from the customer master reports had been incorporated correctly into the FDIC’s LAMIS System.

To verify the accuracy of the interest rates that the FDIC applied to the defendants’ notes, the FDIC offered the testimony of Maureen Dutile, a credit technician with the FDIC whose duty was to monitor interest rate changes. She personally compared the dates of the interest rate changes as well as the rate change contained in the FDIC computer records with the interest rates published in the Wall Street Journal to assure accuracy.

The foundation presented by the FDIC with respect to exhibit twelve comports with the standards enunciated in Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485. The defendants objected because Thurston could not verify the accuracy of the information the FDIC obtained from Whitney. She was not required to do so. The defendants overlook the fact that authentication goes to the admissibility of exhibit twelve, not to its accuracy, which goes to its weight. “Conformity with the statutory conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability. . . . Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact. . . . While the circumstances of the making of the [records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” (Citations omitted; internal quotation marks omitted.) State v. Waterman, supra, 7 Conn. App. 341-42. The trial court, therefore, properly admitted exhibit twelve.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendants, against whom the plaintiff brought separate actions, are Ralph Carabetta, Salvatore P. Carabetta, Evelyn M. Carabetta and Salvatore R. Carabetta.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.’’

       We note that the defendants declined to make use of the computer provided by the FDIC to visualize exhibits three and four on cross-examination. Because the exhibits were admissible, it was incumbent upon the defendants to attack the credibility of the information contained on them through cross-examination if they wanted to challenge the weight the trial court ascribed to the data.

       The court questioned Femmer as follows:
      “The Court: Well, let me ask you, is that not—like I say, unfortunately, I probably am not enough of an expert, I am not an expert in computers, but I do use them and I do have some knowledge of them. When I have something on the screen in front of me and I want to put it onto a piece of paper, I press a button called print. You cannot do that with these exhibits and get what’s on the screen?
      “[Femmer]: You can do that. We do have that.
      “The Court: But you just didn’t do that?
      “[Femmer]: We didn’t just do that because it’s very difficult to read.
      “The Court: What do you mean by difficult?
      “[Femmer]: It just flows together.
      “The Court: You can’t understand it, you mean? Or you can’t see it, or what?
      “[Femmer]: It’s much harder to differentiate between the fields.
      “The Court: Okay, but it can be done?
      “[Femmer]: It can be done and I did print off copies.
      “The Court: And is this just an aid to the reader? Is that what you’re saying?
      “[Femmer]: Yes, this was just an aid to make it easier to read.

        “The Court: But you didn’t,—I don’t want to put words in your mouth. Did you put anything into this other than making it, easier to read? When I say read, I’m talking about easier to the eye or did you do some editorializing of it?
      “[Femmer]: No, we didn’t change any of the information on the diskette, All of the original data is still there.
      “The Court: You’re saying it is the same except it’s a little different format. Is that what you’re saying?
      “[Femmer]: Yes, yes.
      “The Court: Format. She said it’s the same information only it’s a different—to the eye it looks different but it’s the same. She didn’t—she said— correct me if I’m saying anything—
      “[Femmer]: No, it’s the same information.
      “The Court: She didn’t change a number. She didn't change a word. She just made it easier for the eye to see. That's what I got from the witness’ testimony. She didn’t summarize anything.”


text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. RALPH CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. SALVATORE P. CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. EVELYN M. CARABETTA FEDERAL DEPOSIT INSURANCE CORPORATION v. SALVATORE R. CARABETTA
    (AC 17923)
    Foti, Landau and Dupont, Js.

      Argued April 28
    officially released October 19, 1999

      Kerry M. Wisser, with whom, on the brief, was Nathan A. Sehatz, for the appellants (defendants).

      James W. Oliver, with whom was Maria K. Tongas, for the appellee (plaintiff).
   Opinion

LANDAU, J.

This is a joint appeal from four judgments of the trial court rendered after a hearing in damages awarding damages to the plaintiff Federal Deposit Insurance Corporation (FDIC) as receiver of National Industrial Bank of Connecticut (bank) against the four individual defendants. On appeal, the defendants raise evidentiary challenges, within the parameters of General Statutes § 52-180, maintaining that the trial court improperly admitted testimonial and documentary evidence to establish the amount of their debts. We affirm the judgments of the trial court.

The facts are not in dispute. Each of the defendants executed separate promissory notes in favor of the bank and failed to make payment. After the bank was declared insolvent, the FDIC, as receiver, commenced actions against each of the defendants. Although each defendant filed an answer, special defenses and a counterclaim, the trial court granted summary judgment as to liability in favor of the plaintiff against eách defendant. A consolidated hearing in damages resulted in judgments for the plaintiff against each defendant. At the hearing in damages, the court admitted evidence of the amount of the debt over the defendants’ objections that the evidence was not a business record under the business records exception to the hearsay rule in § 52-180. On appeal, the defendants claim that the court inappropriately determined the amount of principal and interest due on the promissory notes because it improperly admitted (1) testimonial evidence regarding the outstanding balances on the promissory notes at the time the bank failed and the amount of interest due and (2) documentary evidence as proof of (a) the principal balance on the promissory notes at the time of the bank’s failure because the document was not a business record of the FDIC and (b) interest because the document was created during and for trial. Additional facts will be discussed where relevant to the defendants’ claims.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998). “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998).

I

The defendants’ first claim is that the trial court improperly admitted testimonial evidence from (1) Joyce Ragozzino of the outstanding balances on the promissory notes at the time the bank was declared insolvent and (2) Teresa Thurston as to the interest due. We disagree.

A

Ragozzino, who was senior vice president of the bank at the time it went into receivership, testified from her recollection about a portfolio she kept at the bank that showed that the defendants’ loans had not been repaid. The defendants objected because Ragozzino testified from memory as to the information contained in the portfolio, which could not be put into evidence because it was not available. Citing the best evidence rule, the defendants, therefore, claim they could not cross-examine the witness about the contents of the portfolio. The court permitted Ragozzino to testify from personal knowledge and denied the defendants’ motion to strike her testimony, ruling that the best evidence rule was not applicable because the portfolio could not be found. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 9-12, 513 A.2d 1218 (1986).

The plaintiff argues that this claim is immaterial because documents that provided the same evidence concerning the status of the defendants’ loans at the time the bank went into receivership were subsequently admitted into evidence. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the err or was harmful. . . . One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the testimony was cumulative . . . .” (Citation omitted; internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 276, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). Because the evidence was cumulative, we agree with the plaintiff and need not determine whether the court’s ruling was improper.

B

The defendants also objected to the testimony of Thurston, a technician in the FDIC’s accounting department, as to the principal balance and accrued interest on each loan. The witness acknowledged that her testimony was based on computer records of the FDIC that incorporated information from the records of the bank. Thurston is a person familiar with the FDIC’s computer-hardware and software, including the “LAM1S System.” She testified that the computer printouts consisted of a “POFF” (payoff screen), containing the account numbers of the loans, the outstanding principal balance and accrued interest on each loan; the “LGEN” (loan general history screen), containing general information about the loan, including the per diem, current rate, and loan “paid to” date; and the “HRAP” (history recap screen), containing rate change information. Thurston had received ongoing computer training, had the ability to access all computer screens and found the FDIC computer system to be generally rehable. The defendants objected to Thurston’s testimony because it relied on information that purportedly came from the records of the bank and that it was, therefore, hearsay within hearsay.

In this age of electronics, evidence is not inadmissible just because the information was provided by means of a computer. In American Oil Co. v. Valenti, 179 Conn. 349, 360-61, 426 A.2d 305 (1979), our Supreme Court determined that one who used computer records and had only an indirect role in their production was competent to testify that the records were made in the ordinary course of business. The witness’ personal knowledge goes to the weight of the evidence, not its admissibility. Id., 357-58.

“Business records that are generated by computers present structural questions of reliability that transcend the reliability of the underlying information that is entered into the computer. Computer machinery may make errors because of malfunctioning of the hardware, the computer’s mechanical apparatus. Computers may also . . . make errors that arise out of defects in the software, the input procedures, the data base, and the processing program. ... In view of the complex nature of the operation of computers . . . courts have been cautioned to take special care to be certain that the foundation is sufficient to warrant a finding of trustworthiness and that the opposing party has full opportunity to inquire into the process by which information is fed into the computer.” (Citation omitted; internal quotation marks omitted.) Id., 358-59.

In American Oil Co., our Supreme Court found that the foundation to establish the admissibility of computer records must come from a witness who is knowledgeable about computers and the process used by the business to create computer generated records, and who can be examined about the function and reliability of the computer system. See id., 360-61. On the basis of Thurston’s testimony, we conclude that she was a person competent to testify as to the trustworthiness of the computer records in question pursuant to American Oil Co.

The defendants rely on Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 579-80, 662 A.2d 157 (1995), in support of their claim. Central Bank is factually distinguishable from this case. In Central Bank, the defendants objected to testimony from an FDIC credit specialist who, unlike Thurston, did not have personal knowledge of the FDIC computer records, the computer system or its reliability. The defendants also cite New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996), in support of their position. Bedford Realty Corp. is factually different as well because, in that case, the witness did not have personal knowledge of the documents she relied on to testify and the documents were not offered into evidence. Id., 757-58. Again, Thurston had personal knowledge of the manner in which computer records were kept and the documents she relied on were admitted into evidence. See part II of this opinion. For these reasons and for the reasons discussed in part II of this opinion, the trial court properly admitted the testimony of Thurston.

II

The defendants also claim that the trial court improperly admitted documentary evidence, specifically (1) exhibit two as proof of the principal balance on the promissory notes at the time of the bank’s failure and (2) exhibit six as proof of the interest due because the document was created during and for the litigation. We do not agree.

A

The defendants maintain that the trial court improperly admitted computer records into evidence as authentic business records of the bank or the FDIC. At trial, the defendants objected to the admission of exhibit two claiming that it had not been authenticated and that a proper foundation was lacking. The FDIC called Edward Bachman, an employee of United Bank and Trust Company (United Bank), the bank’s off-site data processor; Alan Brown, United Bank’s operations manager; Katherine Savage, the bank’s loan supervisor, as well as others to authenticate exhibit two, which was a computer generated document.

“Early Connecticut case law enunciated rules favoring the admissibility of business records. ... [A] shop book was admissible to prove the amount of indebtedness. . . . Such entries were admissible in proceedings involving parties other than the original debtor and creditor. . . . More recent Connecticut case law has articulated similarly modest requirements for the admission of business records under § 52-180.” (Citations omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 602, 717 A.2d 713 (1998).

“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991).

“Conformity with the statutoiy conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability. . . . Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact. . . . While the circumstances of the making of the [records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” (Citations omitted; internal quotation marks omitted.) State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

“We have stated that § 52-180 ‘should be liberally interpreted’ in favor of admissibility. Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485; see Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388, 461 A.2d 422 (1983). The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time period. Baumert-Moran Sales Co. v. Red Bird Truck Rental Corp., 149 Conn. 42, 45, 175 A.2d 189 (1961).” New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 603. Also, “[t]here is no requirement in § 52-180 . . . that the documents must be prepared by the organization itself to be admissible as that organization’s business records. All that is required is that it be in the regular course of the business to make the writing or record.” (Internal quotation marks omitted.) Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475-76, 531 A.2d 177 (1987).

The liberal application of the statute is derived from the recognition that the trustworthiness of such documents comes from their being used for business and not litigation. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 190 Conn. 388-89. Thus, the fact that the business relies on such records tends to establish their trustworthiness.

“Authentication is ... a necessary preliminary to the introduction of most writings in evidence .... A proponent may authenticate a document by demonstrating proof of authorship of, or other connection with, [such] writings. ... In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody. . . . The requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the hearsay exception. It is generally held that business records may be authenticated by the testimony of one familiar with the books of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business.” (Citations omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 604.

With this understanding of the law concerning the admissibility of business records, we turn our analysis to the evidence before the trial court. The FDIC called Bachman, who authenticated and testified as to the data processing contract between the bank and United Bank, and established United Bank’s business duty to provide data processing services to the bank. Brown, the operations manager of United Bank in the 1980s, identified the computer printouts of the loan history reports of each defendant, stating that they were records produced by United Bank. Brown did so by identifying the type of computer paper and the matrix printing that United Bank utilized at that time, as well as the number United Bank assigned internally to the bank’s records. Brown was the supervisor in charge of running the reports on November 9, 1989, the date the FDIC took over the bank. He testified that the records were boxed at his office and taken by FDIC officials at that time. Brown’s testimony, coupled with United Bank’s duty to keep the records, was sufficient to authenticate the loan history reports of the defendants because he had personal knowledge of how and when the reports were generated, and that they were generated by United Bank on the morning the FDIC took over the bank.

Although Savage, supervisor of the loan department, was unable to testify that she had seen exhibit two before, she identified the reports, matching the account numbers on them with the numbers on the subject promissory notes. The FDIC also called Keith Parker, a liquidation technician with the FDIC conversion team, who testified as to how the FDIC conversion process of the bank took place and the testing procedures employed by the FDIC to ensure that the conversion had been properly and accurately done.

Although the requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the business records exception to the hearsay rule; see id.; where computer generated records are concerned, the proponent also must establish that the basic elements of the computer systems are reliable. “Trial courts must have considerable latitude in determining the admissibility of evidence in [the area of computer generated business records] as in others. Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1190 (1976). We are not prepared to identify with precision what status in a particular company’s hierarchy a witness must have in order to be sufficiently knowledgeable to testify about computer records. Section 52-180 expressly allows business records to be admitted despite the absence of testimony from ‘the person or persons who made the writing or record, or who [had] personal knowledge of the act, transaction, occurrence or event recorded.’ This language is helpful in clarifying that it is not necessary to produce as a witness the [data entry clerk] who actually entered information into the computer or the programmer who designed the processing program.” American Oil Co. v. Valenti, supra, 179 Conn. 360. What is crucial is not the witness’ job description, but rather his or her knowledge of the basic elements that afford reliability and trustworthiness to computer printouts. Id.

The gist of the defendants’ argument is that although the documents may have been received in the ordinary course of business, this fact does not satisfy the requirement of § 52-180 (a) that the documents were made in the ordinary course of business. This argument, however, assumes that § 52-180 requires that the documents must be prepared by the organization itself to be admissible as that organization’s business records. This is not so. All that is required is that it be in the regular course of the business to make the “writing or record.”

In this case, the data was placed in computer memory nine years prior to trial. At trial, the defendants sought a ruling that, under the claim of authentication, the witness must testify that both the screen and the hard copy were identical. Specifically, the defendants claim that because the hard copy record was printed by United Bank, for purposes of authentication, the witness must testify that the hard copy was the very thing that was on the screen at the bank. The transcript contains substantial evidence of the reliability of the hardware and software systems. To accept the defendants’ invitation would place an impossible burden on the proponent of the use of the business records rule as to records generated by computer. In this case, it would require a witness to remember and testify that each and every single report that came from United Bank was exactly the same, on that particular day, as the screen from which that report was produced.

The business records rule is one of convenience. The purpose of the legislature in enacting the statute was to permit a writing or record, made in the regular course of business, to be received into evidence without the necessity of calling as a witness everyone who had any part in making it, providing a duty is shown. See Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 99-100, 3 A.2d 224 (1938). The standard the defendants seek to impose to authenticate business records would effectively eviscerate § 52-180 in any application to computer generated records. A careful reading of the whole record demonstrates that the hard copy documents were business records. The defendants’ concerns go to the weight of the evidence rather than to its admissibility. The proper foundation having been established, the trial court properly admitted the evidence.

The defendants’ challenge to the preparation of the hard copy of the document by United Bank is of little merit. We do not require that the documents must be prepared by the organization itself to be admissible under § 52-180. Crest Plumbing & Heating v. DiLoreto, supra, 12 Conn. App. 475. United Bank merely printed a hard copy of documents prepared by the bank and downloaded to FDIC.

We conclude that the keeping of a report in the failed bank’s data bank that served as the basis of whether the FDIC was owed money under a note and loan agreement satisfies the statutory requirement of “record” and that such a record could reasonably be found to have been made in the course of the FDIC’s business, that it was the regular course of such business to make such a record and that it was made at the time of the act described in the report or within a reasonable time thereafter.

B

. The defendants’ final claim is that the trial court improperly admitted exhibit six into evidence because it was created during the trial. We do not agree that the exhibit was improperly admitted.

The following additional facts are necessary for our resolution of this claim. Thurston was called twice to testily as to the amount of interest due on the loans. She first testified in July, 1997, explaining that she had calculated the interest due from information gleaned from The Wall Street Journal. She did not know, however, whether the information she obtained was the lowest rate of interest or the prime rate. The note required the lowest rate. The court observed that Thur-ston had not followed the language of the note in computing the interest due. Thurston testified again, approximately two months later, that the FDIC had reviewed the terms of the promissory notes and determined that they called for a 14 percent postmaturity default rate and that consequently the loans were “rebooked” to the lower default rate. Exhibit six represented the recalculation of the interest due on the promissory notes. Thurston testified that it was in the ordinary course of business to put the changed rate of interest into the computer and keep that running on a daily basis. The defendants claim that exhibit six should not have been admitted into evidence because it was created specifically for use in litigation.

“The trustworthiness of a business record devolves from its being prepared ‘in the ordinary course of business,’ but litigation is common enough for most firms so that they must keep or prepare records in connection with present or future litigation. Although such records should be reviewed with particular care for indicia of trustworthiness, they should not be excluded solely for the reason of their nexus to litigation. Cf. State v. Jeffrey, 220 Conn. 698, 710, 601 A.2d 993 [(1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992)].” C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1999) § 11.14.3, p. 239.

Here, the court determined that Thurston had recalculated the interest due to conform to the language of the promissory notes and had entered the data in the computer so that the amount of interest could be calculated on a daily basis. Exhibit six was printed out just before Thurston testified so that the document would accurately reflect the amount of interest due at that time. The fact of the matter is that the defendants defaulted on their promise to pay the bank, and the terms of the note permitted the FDIC to “rebook” the interest due. The amount of interest due changed every day the defendants failed to repay their debt. It was in the ordinary course of the FDIC’s business, as receiver of the bank, to collect on the promissory notes in default and it had to resort to litigation to do so. The fact that exhibit six was prepared at the time of and for the litigation was no reason to exclude it from evidence. The court, therefore, appropriately exercised its broad discretion and properly admitted exhibit six.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendants, against whom the plaintiff brought separate actions, are Ralph Carabetta, Salvatore P. Carabetta, Evelyn M. Carabetta and Salvatore R. Carabetta.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       Under the best evidence rule, when “proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” (Internal quotation marks omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986). “[T]he basic premise justifying the rule is the central position which the written word occupies in the law. ... It is because of this centrality . . . that presenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dispositive instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.” (Citation omitted; internal quotation marks omitted.) Id., 10-11. “Although the rule was originally perceived to be of possible application to all kinds of evidence ... it has tended to become now chiefly confined to the rule that the terms of a document must be proved by the production of the document itself, unless production is not feasible .... In any event, the best evidence rule at common law is a preferential, rather than an exclusionary rule. . . . [T]he rule is not intended as an exclusionary one; it is merely a rule of preference operating as a special exception to the rules of testimonial preference.” (Citations omitted; internal quotation marks omitted.) Id., 11-12.

       Exhibits two, six, seven and eight concerning' the defendants’ failure to repay their loans and the interest due on them were put into evidence.