Monday, March 3, 2008
My New Article -- Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003
You are a judge.
(a) The year is 1814. A man bringing a breach of contract action seeks to introduce a scribe's handwritten copy of the contract and cannot explain his nonproduction or the original. The defendant claims that the scribe made several material transcription errors while creating the copy.
(b) The year 2005. A man bringing a breach of contract action seeks to introduce a photocopy of the contract and cannot explain his nonproduction of the original. The defendant claims that the plaintiff digitally altered material terms in the copy.
Which defendant do you believe more?
This question prompted my new article, Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003. In reality, the judge in 1814 would have excluded the scribe's copy under the common law Best Evidence Rule, which indicated that parties seeking to prove the contents of documents had to produce the originals or account for their nonproduction. The judge in 2005 would likely find the photocopy admissible under Federal Rule of Evidence 1003, an exception to the Best Evidence Rule, which was enacted in 1975 and which indicates that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."
I can see an argument for siding with either the 1814 defendant or the 2005 defendant, but I think that we all can agree that there are currently significant reasons to doubt the authenticity of copies of documents, photographs, and video and sound recordings, especially when there is no explanation for the nonproduction of the original. And based upon this doubt, courts should readily find that the opponents of duplicates raise genuine questions as to authenticity under Rule 1003(1) (Rule 1003(2) covers situations where copies fail to completely reproduce important parts of originals). Yet case law reveals that courts presented with Rule 1003(1) challenges almost always reject them.
My article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scattershot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.
Section I considers the origins and application of the common law Best Evidence Rule and how the invention of modern copying technologies paved the way for the adoption of Federal Rule of Evidence 1003 and state counterparts. Section II argues that the textual similarities between Federal Rule of Evidence 1003(1) and Federal Rule of Civil Procedure 56(e)(2) supports the argument that parties opposing the admission of duplicates should be treated the same as parties opposing motions for summary judgment. It concludes, however, that courts have required a greater evidentiary showing by parties opposing the admission of duplicates.
Section III claims that the legislative history behind Rule of Evidence 1003 provides an even stronger basis for the argument that courts should treat parties opposing the admission of duplicates in the same manner that they treat parties opposing motions for summary judgment. It notes, however, that courts have actually construed the exception in a manner which has rendered it meaningless. Finally Section IV contends that technological developments since Rule 1003's enactment, which have enabled nearly anyone to be able to to quickly create fairly compelling forgeries, provide another basis for using the summary judgment test in Rule 1003(1) cases. Instead, courts have made duplicates even better than the real thing because they are largely treated the same as originals for authentication purposes, and yet originals may possess physical characteristics of the highest importance which no copying can reproduce.