Thursday, September 26, 2013
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
I'm not sure how Rule 1006 could be read as anything other than a requirement that a party seeking to introduce charts, summaries, or calculations must make the originals or duplicates available for examination, copying, or both by other parties. So, how did the Court of Appeals of Mississippi disagree with me in Gardner v. Gardner, 2013 WL WL 5313142 (Miss.App. 2013)?
In Gardner, William Gardner appealed from a divorce decree which ended his marriage with Teresa Gardner. One of the grounds for his appeal was that "he requested all bank records and statements from Teresa during discovery, but Teresa failed to produce these until trial when she attempted to admit the summaries of these documents into evidence." In response, the court found that
From the record, it appears the bank records at issue are statements from William's personal checking account. William's attorney admittedly received notice from Teresa's attorney that these records were available for his review as early as November 29, 2010. It appears that Teresa actually requested these documents in discovery, not William, and Teresa was required to obtain the records via subpoena on the bank. In his testimony, William admitted that he and his attorney reviewed the bank statements on December 3, 2010, at Teresa's attorney's office. Furthermore, the comment to Rule 1006 states that "the summaries are clearly admissible as evidence, but...the underlying material [should] be made available to the other parties for their examination."
Now, it certainly appears that the Court of Appeals of Mississippi could have been saying that Teresa did in fact make the originals available to William, meaning that there was clearly no issue under Mississippi Rule of Evidence 1006. But the court also seems to be saying that, even if the originals were not made available, there might not be a problem because the commentary to the Rule merely states that "the underlying material [should] be made available to the other parties for their examination."
But let's look at the actual commentary. It states:
This rule represents a change in Mississippi practice. Rule 1006 refers to voluminous writings, as well as recordings and photographs. Under the rule, a summary of the voluminous material is sufficient as admissible evidence. The underlying material need not be introduced simultaneously into evidence as had been the practice in Mississippi. See Crawford v. State, 162 Miss. .158, 138 So. 589 (1932). This Mississippi court has treated the summaries as demonstrative tools rather than as evidence. Rule 1006 provides that the summaries are clearly admissible as evidence, but requires that the underlying material be made available to the other parties for their examination.
What the hell? The commentary literally says that the rule requires that the underlying material be made available. Where does the court get off adding the word "should" in brackets in its opinion when there is absolutely nothing in the commentary to indicate that the obligation is discretionary?