Thursday, August 2, 2012
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
Federal Rule of Evidence 1004(d), however, provides that
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:...
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Rule 1004(d) is a rarely applied Rule for obvious reasons, and it didn't apply in Seidel v. Hoffman Floor Covering Corp., 2012 WL 3064153 (E.D.N.Y. 2012). But, as the court noted, a judge did rely upon the Rule in another recent opinion, with the judge himself recognizing that his reliance was "strange."In Seidel,
Plaintiff Robert Seidel sued Defendants Hoffman Floor Covering Corp. ("HFC") and Andrew Hoffman (with HFC, "Defendants") for underpayment of wages and supplemental benefits. On July 29, 2011, the Court granted Plaintiff's request to withdraw his Fair Labor Standards Act and New York Labor Law claims with prejudice....Plaintiff also requested permission to withdraw his breach of contract claim without prejudice so that he could re-file it in state court; the Court denied this request....Plaintiff's only outstanding claim [wa]s the common law claim under New York law for underpayment of prevailing wages and supplemental benefits.
As the Eastern District of New York noted,
The principal dispute in th[e] case is whether Plaintiff was entitled to be paid the proper prevailing wage for time he spent working on "public works" projects pursuant to contracts that HFC allegedly made with various public entities.
The defendants moved for summary judgment, claiming that the court could not resolve this dispute because the plaintiff failed to produce a contract with a prevailing wage clause. The Eastern District of New York agreed and then noted that
In awarding Defendants summary judgment, the Court notes that Magistrate Judge Steven M. Gold recently considered a very similar issue in Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346 (E.D.N .Y.2011). In Ramos, which also involved third-party breach of contract prevailing wage claims, the court addressed whether the plaintiffs could survive summary judgment notwithstanding their inability to offer the labor contracts into evidence....Relying on Section 220 and Federal Rule of Evidence 1004, Judge Gold concluded that the plaintiffs could prevail without the contracts and that they could prove the contents of the contracts through other means. The thorough decision relies on, among other things, the fact that Section 220 requires all public works contracts to contain prevailing wages clauses and that Rule 1004 permits a party to use secondary evidence to prove the contents of a writing where the writing "is not closely related to a controlling issue," FED.R.EVID. 1004(d)....Recognizing that it seemed strange to hold that the existence of a contract is merely collateral to a breach of contract claim, Judge Gold thought it was relevant that there was no dispute that the alleged contracts were, in fact, "public works" contracts or that the defendant was required to pay prevailing wages for at least some of the work done on these projects....Thus Ramos and this case are significantly different. Here, these issues are disputed, and they are precisely what the contracts would resolve if they were offered.
Yes, indeed, Ramos is strange. As noted, "Ramos...involved third-party breach of contract prevailing wage claims..." And sure, there was no dispute that the subject contracts were "public works" contracts, but that's not the issue. A controlling issue in a breach of contract case is the content of the subject contracts. Therefore, the subject contracts in Ramos were "closely related to a controlling issue, meaning that Federal Rule of Evidence 1004(d) should have been deemed inapplicable.