dissenting:
I respectfully dissent.
The trial court properly refused to admit the videotape into evidence. The majority acknowledges that the videotape would be admissible if a witness identifies it as an accurate representation of the . events which it purports to portray. (See Pace v. McClow (1983), 119 Ill. App. 3d 419, 427, 458 N.E.2d 4, 10.) Plaintiff has failed to meet this foundational requirement.
The majority states that Andrew Chambers “was able to positively identify a segment of the videotape at 6:44 p.m. which showed him leaving the gate in the van.” This is incorrect. Chambers simply stated that he normally leaves the plant around 6 or 6:30 p.m. every day, and that the tape showed him leaving the plant. He had no personal knowledge as to the time or date of the events shown on the tape, but stated the only way he knew the time and date of the events depicted was from the graphics superimposed on the videotape.
The majority is correct when it states that Sergeant Wetherington was able to identify a segment of the videotape as accurately portraying what occurred at 7:25 p.m. However, plaintiff was attempting to use the videotape to show defendant’s truck was not at the plant at 6:22 p.m. or 6:44 p.m. There was no testimony that the videotape accurately portrayed the events which occurred at those times. Furthermore, there was no evidence the videotape was running constantly that evening, or was continually recording pictures of the area where defendant’s truck was allegedly located. While plant manager Brekhus testified that a timer records the time and date on the videotape, he did not know how this was done and did not testify regarding the accuracy of the timing device.
Having reviewed all the evidence, I must conclude plaintiff failed to show by competent evidence that the videotape is an accurate representation of the events which it purports to portray.
Plaintiff also argues the videotape is admissible as a business record under Supreme Court Rule 236 (103 Ill. 2d R. 236.) This rule states that a record is admissible “if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter.” 103 Ill. 2d. R. 236(a).
“The credibility of any business record depends upon the regular, prompt and systematic nature of the entries and the fact that they are relied on in the operation of a business.” (Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App. 3d 719, 725, 295 N.E.2d 329, 334.) It is the routine nature of these entries which adds to their trustworthiness. (See 10 Ill. App. 3d 719, 725, 295 N.E.2d 329, 334.) The videotape here was not made in the regular course of business, but grew out of the difficulties that arose between plaintiff and the union. (See Erickson v. Ottawa Travel Center, Inc. (1979), 69 Ill. App. 3d 108, 111, 387 N.E.2d 49, 52.) Plant manager Brekhus testified that the videotaping was done by security personnel pursuant to his instructions. He then stated: “Those instructions are to film all activities at the gate, at the tent or the picket house, whatever the case might be, whenever those activities are unusual.” Thus, the videotaping was focused upon the union activities near the plant gate. Furthermore, the guards were instructed to tape only unusual activities. This was not a regular, systematic, or routine record-keeping system. Moreover, Illinois courts have found that where records are kept in anticipation of litigation, they are not admissible as business records. (See People v. ex rel. Schacht v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 344, 448 N.E.2d 950, 957; Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App. 3d 719, 725, 295 N.E.2d 329, 334.) Consequently, this videotape was not admissible under the business-records rule.
For these reasons, I can find no abuse of discretion in the trial court’s refusal to admit the videotape into evidence, and I would affirm the judgment of the circuit court of Massac County.