Tuesday, July 5, 2011
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be subject of proof at the hearing, and that party does not produce the original at the hearing....
Rule 1004(3) is pretty rarely applied, so it is always nice to come across a case like Publishing Group, Ltd. v. Cooper, 2011 WL 2418654 (Ohio App. 10 Dist. 2011), which shows the Rule in action.In Cooper,
Publishing Group contacted Cooper and offered to print an advertisement for Cooper's business in Westerville Magazine's November/December 2008 issue. Cooper accepted Publishing Group's offer. On September 2, 2008, Cooper signed an agreement reserving advertisement space in Westerville Magazine's November/December 2008 issue. The agreement obligated Cooper to pay Publishing Group $1,500 within 30 days from the date that Publishing Group issued an invoice to him.
Publishing Group included Cooper's advertisement in the November/December 2008 issue of Westerville Magazine. Although Publishing Group sent Cooper an invoice requesting payment in early October 2008, Cooper refused to pay for the advertisement. According to Cooper, the agreement he signed provided that if he did not pay for the advertisement by October 2, 2008, Publishing Group would not print it. Cooper apparently believed that by not submitting payment to Publishing Group by October 2, 2008, he relieved both parties from their obligation to perform under the agreement.
Publishing Group thereafter brought a breach of contract action against Cooper. At trial, Publishing Cooper did not introduce the original agreement into evidence, and the court ultimately found that Cooper breached the contract. Cooper thereafter appealed, claiming, inter alia, that Publishing Group violated Rule 1002 by not introducing the original agreement at trial. The Court of Appeals of Ohio, Tenth District, disagreed, concluding that a Publishing Group employee
testified that a Publishing Group employee transmitted the agreement to Cooper, who signed it, and faxed a copy of the signed agreement to Publishing Group. Cooper, therefore, has always retained possession of the original agreement. Publishing Group sued Cooper for breach of contract, thus putting Cooper on notice that the terms of the agreement would be at issue during trial. Cooper, however, never produced the original agreement at trial. As Publishing Group satisfied all the requirements of Evid.R. 1004(3), that exception relieved Publishing Group from the burden of presenting the original agreement at trial. Therefore, we conclude that the trial court did not err in permitting Publishing Group to prove the existence and terms of the agreement through oral testimony.