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

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Friday, April 12, 2013

Controlling Share: When is a Writing, Recording, or Photograph Not Closely Related to a Controlling Issue?

As I have been writing a lot about the Best Evidence Rule recently, a question has arisen. Federal Rule of Evidence 1002 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(d) states that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the writing, recording, or photograph is not closely related to a controlling issue.

So, when is a writing, recording or photograph not closely related to a controlling issue?

The Advisory Committee's Note to Rule 1004 tells us the following:

Paragraph ([d]). While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick §200, p. 412, n. 1.

Today, let's take a look at Little Rock Publishing Co. In that case, the plaintiff-newspaper sued the defendant-copartnership, claiming that the defendant agreed to pay the plaintiff $50 in exchange for the plaintiff publishing an advertisement in its newspaper and then failed to pay the $50 after the advertisement was published. After the trial court found for the plaintiff, the defendant appealed, prompting the Supreme Court of Arkansas to find the following:

The plaintiff's case was made by the deposition of one J. F. Keeley, who testified that the sum sued for was due for advertising in a special issue of the Arkansas Democrat, a daily newspaper published in the city of Little Rock, and that "every condition and promise was lived up to in every way" by the publishing company. It was objected that this was secondary evidence, and should have been excluded as such. We do not think the objection is well taken. It is true the witness did not produce a copy of the paper containing the advertisement, but there could be no objection to the witness stating that the advertisement was published, if the witness knew that such was the fact.

I'm pretty confused as to why the Advisory Committee included Little Rock Publishing Co. as one of two cases explaining what is now Rule 1004(d). The court's conclusion seems to be premised on Keeley having independent personal knowledge that the newspaper contained the advertisement rather than being premised on the newspaper not being related to a controlling issue. Indeed, it would be nonsensical to conclude that the newspaper was not related to a controlling issue because the entire question in the case was whether the newspaper published the subject advertisement.

Moreover, if the case was indeed decided based upon a finding of independent personal knowledge, I believe that it was wrongfully decided. It is easy to believe that Keeley had personal knowledge that the newspaper had done everything necessary to get the advertisement published. But how could Keeley know with 100% certainty that the advertisement was published without actually reading the newspaper? Given this, Keeley's knowledge that the advertisement was ostensibly dependent on reading the newspaper, meaning that his testimony should have implicated the Best Evidence Rule.

-CM

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Comments

Colin,

I think I disagree with you. The key is to focus on "the issue" at trial. I think the defense was that the ad wasn't published. The plaintiff's evidence was from the editor is charge of publishing ads who stated -- from personal knowledge -- that the ad was published.

If the defense was that the ad wasn't paid for because it contained material errors, then the issue at trial would have been the content of the ad and plaintiff could not get by the BER with testimony that the ad was correct because then the controlling factual issue would be the content of the ad, requiring production of the ad or a legal excuse for not doing so.

Fred

Posted by: Fred Moss | Apr 15, 2013 10:56:57 AM

"The plaintiff's evidence was from the editor is charge of publishing ads who stated -- from personal knowledge -- that the ad was published."

Fred, thanks for the comment, but I'm still don't get how the editor could have independent personal knowledge that the advertisement was published. Without reading the newspaper, the editor might have had every reason to THINK that the ad was published. But without reading the newspaper, how could he KNOW with any certainty that the ad was published?

Posted by: Colin Miller | Apr 15, 2013 4:35:33 PM

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