EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 18, 2012

I'm Incomplete: 7th Circuit Funds Excerpted Copies From Transcript Inadmissible Under Best Evidence Rule

Yesterday, I posted an entry about the best evidence rule. That rule, contained in Federal Rule of Evidence 1002, states that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

On such rule that "provides otherwise" is Federal Rule of Evidence 1003, which states that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

So, when is it" unfair to admit the duplicate" under Rule 1003? Well, let's take a look at the recent opinion of the Seventh Circuit in Brown v. Advocate South Suburban Hosp., 2012 WL 5870725 (7th Cir. 2012).

In Brown

Over a span of several years, two hospital nurses, Josalynn M. Brown and Carolyn Wilson, raised a series of complaints about their working conditions, including complaints of racial discrimination. They later sued their employers, defendants Advocate South Suburban Hospital and Advocate Health and Hospitals Corporation (collectively referred to as "Advocate"). Brown and Wilson argued that Advocate had discriminated against them and subsequently retaliated against them for complaining about the discrimination. The district court concluded that there was not enough evidence to support the nurses' claims and granted summary judgment for Advocate. 

Brown and Wilson thereafter appealed, with Brown claiming, inter alia,

that a supervisor drafted a "negative summary of associate review" and a "performance deficiency notice" that unfairly criticized her conduct and, in turn, constituted retaliatory adverse employment actions.

The Seventh Circuit found, however, that

The plaintiffs have not actually provided these documents; the only evidence they cite to prove their existence is a series of selective excerpts to the deposition testimony of the supervisor who allegedly wrote them. But "[t]he meaning of quoted phrases often depends critically on the unquoted context." As a result, it will often violate "the 'best evidence' rule of Fed.R.Evid. 1002 and the 'completeness' rule of Fed.R.Evid. 106 Fed.R.Evid. 106 to present trial excerpts from a key document without introducing the document itself."...Accordingly, it is unclear whether the deposition testimony would even be enough to prove the existence of the documents at trial

Federal Rule of Evidence 106, the rule of completeness, provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

So, what the court was really saying is that when a party tries to introduce excerpted copies of an original, those excerpted copies will not be admissible under Federal Rule of Evidence 1003 because "the circumstances make it unfair to admit the duplicate" based upon the rule of completeness.



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