EvidenceProf Blog

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

Monday, April 22, 2013

You Got It: Court Finds No Best Evidence Problem Because Defendant Had Original

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.

That said, Federal Rule of Evidence 1004(c) (formerly Federal Rule of Evidence 1004(3)) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing....

Rule 1004(c) doesn't come up terribly often, but it was used in Barraza v. Housing Authority of City of Seattle, 2006 WL 1663702 (W.D.Wash. 2006).

In Barraza, Omar Barraza, a former employee of the Seattle Housing Authority (SHA), brought an action against SHA for retaliation under the federal False Claims Act (FCA). According to the court,

SHA administers "Section 8" housing benefits in the Seattle area for the U.S. Department of Housing and Urban Development (HUD). The Section 8 program provides federal housing subsidies in the form of vouchers to low-income families. The SHA administered a HUD program known as the "Welfare to Work"(WtW) program. Among other things, a family had to be on the Section 8 “wait list” to be eligible for benefits under the WtW program.


allege[d] that in May 2001, [his supervisor] Ms. Roseth instructed another SHA employee to issue WtW vouchers to about 30 families that had been referred to SHA by the Fremont Public Association (FPA). Because some of the families referred by the FPA were not on the Section 8 wait list, Plaintiff assert[ed] that they were not eligible for the WtW program. Plaintiff allege[d] that he confronted Ms. Roseth about this issue and that she "admitted it." Plaintiff state[d] that he had Ms. Roseth sign a memo that directed him to issue the WtW vouchers to the families referred by the FPA.

Barazza also alleged that after he discussed this incide with SHA's human resources director, he was fired.

In response to SHA's motion for summary judgment, Barraza submitted a declaration "in which he state[d] that he ha[d] seen SHA's 1999-2000 administrative plan to administer the Section 8 program and describe[d] provisions of the plan.

SHA objected that this portion of the declaration violated the Best Evidence Rule, but the court disagreed, finding that

FRE 1004(3) provides that the best evidence rule does not apply when the original of a document is in possession of the opponent, the opponent is put on notice that the contents of the document would be a subject of proof at the hearing, and the opponent does not produce the original at the hearing.



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