Analytics Exports and the Business Records Exception

What the business records exception requires

The business records exception, Rule 803(6) of the Federal Rules of Evidence, admits "A record of an act, event, condition, opinion, or diagnosis" if "(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." The 1972 Advisory Committee Note confirms that the record may be a "data compilation, in any form," which "includes, but is by no means limited to, electronic computer storage." A Google Analytics 4 export (a CSV file or BigQuery table of the events GA4 recorded for a website, pulled for a date range the analyst chose) and a Search Console export (Google's report to a site owner of the queries, impressions, clicks and positions it recorded for that site) both fit the form.

The 2014 amendment settled who carries the trustworthiness question. Its Committee Note states that once the proponent has established the first four elements, "the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." The amendment changed no element. It placed the burden, and it confirmed that the opponent "might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point."

Whether an export is hearsay at all

Before reaching the exception, ask whether the export is hearsay. Rule 801 defines a statement as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Three federal appellate decisions hold that output a machine generates without a person asserting anything is not a statement. In United States v. Hamilton (10th Cir. 2005), newsgroup headers "automatically generated by the computer hosting the newsgroup" meant "there was neither a 'statement' nor a 'declarant' involved here within the meaning of Rule 801." In United States v. Washington (4th Cir. 2007), chromatograph results were "the 'statements' of the machines themselves, not their operators." In United States v. Lizarraga-Tirado (9th Cir. 2015), a Google Earth tack "automatically labeled with GPS coordinates isn't hearsay," while a tack a person placed would be "classic hearsay."

None of these cases involved web analytics; they transfer to an export as analogues, layer by layer. The event counter in GA4 is the program. The filter, segment and date range the analyst chose are a person's conduct, examinable on cross-examination but not assertions. The annotation an agency typed into a dashboard, "traffic fell after the migration," is a person's assertion and is hearsay if offered for its truth.

The Washington dissent is the opponent's roadmap: the results "cannot be attributed solely to the machine" because technicians calibrate instruments, prepare samples and sign reports. An analytics export likewise reflects a tag configuration (the code placed on the site that tells GA4 which events to record), filters, a reporting identity and retention choices, each made by a person. The majority's answer was that such concerns "are addressed through the process of authentication": under Rule 901(b)(9) the proponent shows the process "produces an accurate result," which for a sampled or modeled GA4 report Google itself qualifies.

Whose record a Google-generated report is

If you offer the export as a business record rather than as machine output, you have to say whose business. Google's Analytics Terms of Service, last updated May 15, 2023, define "Customer Data" as "the data that you collect, process or store using the Service concerning the characteristics and activities of Users." The Google Ads Data Processing Terms, Version 8.0 dated May 30, 2024, provide that "Google is a processor of Customer Personal Data" and "Customer is a controller or processor, as applicable,".

That allocation points to the site owner as the business whose record the export is. The doctrinal route is the one United States v. Adefehinti (D.C. Cir. 2007) describes for records a firm receives from another source: there is "no requirement that the [business] records be created by the business having custody of them," and such records are admissible "if witnesses testify that the records are integrated into a company's records" and relied upon. A marketing team that pulled the Search Console performance report every month, filed it and ran the business on it has integrated Google's output into its own records, and its analyst is the "qualified witness" under Rule 803(6)(D), who "need not have personal knowledge of the actual creation of the document."

Two limits follow. Nothing located establishes that Google will certify a customer's analytics data under Rule 902(11) or act as its custodian. And the incorporation route does nothing for a report nobody at the company regularly pulled before the dispute. A vendor's traffic estimate is different again: the vendor's record of its own modeled output, not the site owner's record of anything, whose realistic route into a case is under Rule 703 as the basis of an expert's opinion.

The report prepared for the case

The oldest trap in this exception is the one the Supreme Court set in Palmer v. Hoffman, 318 U.S. 109 (1943). A railroad engineer's statement about a collision, given two days later and offered as a business record after his death, was excluded. The Court held it was not made "in the regular course" of business: "Their primary utility is in litigating, not in railroading," and "regular course" means "in the methods systematically employed for the conduct of the business as a business."

The Fourth Circuit applied the same reasoning to an outside professional's file in Certain Underwriters at Lloyd's, London v. Sinkovich (4th Cir. 2000). Admitting the file of a marine surveyor the insurer had hired for the case was an abuse of discretion: "The primary motive for preparing the report in the first place is a better indicator of trustworthiness than the form of the investigation or the identity of the investigator," and "Litigants cannot evade the trustworthiness requirement of Rule 803(6) by simply hiring an outside party."

Translate that to a search dispute. The monthly SEO report an agency sent its client for three years before anyone mentioned a lawsuit is a record of a regularly conducted activity. The "traffic loss analysis" the same agency produced after the dispute began is the surveyor's file in Sinkovich, however routine the agency's reporting otherwise is, and the 2014 Note lets the opponent say so without calling a witness. In my experience counsel on both sides overestimate how much post-dispute analysis they can bring in as a record. Its vehicle is Rule 702, through a disclosed expert, with the exports produced.

Certifying the export under Rule 902(11)

Rule 902(11) covers "The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person," and requires that "Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection." The 2000 Committee Note confirms that "A declaration that satisfies 28 U.S.C. §1746 would satisfy the declaration requirement."

For an analytics export the signer is the site owner's analyst, marketing lead or whoever regularly pulled and kept the reports, and the declaration has to track elements (A) through (C): that the export was generated at or near the time of the events it records, or from information GA4 transmitted at that time; that pulling and keeping such exports was a regular practice; and that they were kept in the course of the business. Rule 902(13), which covers records generated by an electronic process or system, borrows the same certification and notice requirements, but it authenticates; it does not supply the hearsay foundation. The two can be combined in one declaration, and for an export that is the practical course.

Dashboards and screenshots versus the export

A dashboard screenshot is a rendering. The date range, filters, segment, reporting identity and sampling state were set by the person who took the picture and are usually not visible in it. Against Rule 803(6)(A), a screenshot taken after the dispute began was not "made at or near the time" of the events it depicts. Against 803(6)(E), the "method or circumstances of preparation" are open to attack.

Rule 1006 does not rescue the chart. A Rule 1006 summary proves the content of "voluminous admissible writings," so a dashboard can summarize only an export that itself clears the hurdles above. Absent that, a chart is at most an illustrative aid under Rule 107, shown to the jury but not received as evidence. The exhibit that can satisfy elements (A) through (D) is the export: the CSV, the BigQuery table or the Search Console API pull, with its query parameters recorded, hashed at capture so that Rule 902(14) can authenticate the copy, and pulled on a documented date.

The other side's own reports

The exception is not the only door. Rule 801(d)(2) provides that a statement is not hearsay when it "is offered against an opposing party" and "(A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." The monthly report the defendant agency sent the plaintiff, or the traffic figure a party published, can be offered against that party without reaching Rule 803(6) at all. What a party said about its own numbers is usable against it. The exception is for proving the numbers were true.

What the reported decisions do and do not say

No reported decision was located, as of November 4, 2026, that rules on whether a Google Analytics, GA4 or Search Console export is a business record or non-hearsay machine output. A Middle District of Florida summary-judgment opinion relied on a nonmovant's Google Analytics figures with no objection recorded; another mentioned Google Analytics only as an example of a sign-up flow. What exists is the framework above, applied by analogy. The foundation that survives it treats the export as the record, the regularly pulled report as the practice, the person who pulled it as the witness, and the post-dispute analysis as expert work to be disclosed under Rule 26 rather than offered as a record.

Frequently Asked Questions

Published 2026-11-04