Mirage Hotel Las Vegas

The facts suggest that the Rosoffs' logs were probably prepared primarily for the purpose of litigation, not in the ordinary course of their motel business. The clerks began to keep the logs in January 1986, shortly before the lawsuit commenced. These records have little purpose other than as evidence for litigation. The logs are not, in the Supreme Court's words, "necessary for moteling," but were instead indications of the confusion that resulted after La Mirage Hotel and Casino opened.

As a result, one of the indicia of trustworthiness for business records does not exist. In Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982), the court noted "The basis for the business record exception is that accuracy is assured because the maker of the record relies on the record in the ordinary course of business activities." [FN19] This is, we add, particularly true when the maker of the record prepares the documents without knowledge of their probable use in impending litigation. However, in this case, the Rosoffs would not be relying on the records of misplaced telephone calls, lost taxicab drivers, or irate tourists in the normal course of their motel business, and they knew of impending litigation. As a result, one of the bases for assuming business records' accuracy, under this exception to the hearsay rule, does not exist; [FN20] we therefore conclude that the district court did not err by striking the logs as inadmissible hearsay, not falling within the business record exception.