EvidenceProf Blog

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

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Friday, April 26, 2013

Adverse Reaction: Should a Court Give an Adverse Inference Instruction if a Party Barely Satisfies Rule 1004(a)?

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(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...all the originals are lost or destroyed, and not by the proponent acting in bad faith....

As I have been writing a good deal about the Best Evidence Rule recently, a question has arisen: What exactly constitutes bad faith for Rule 1004(a) purposes? Obviously, if a party destroys an original writing, recording, or photograph with the specific intent of preventing the opposing party from being able to introduce it at trial, that party has acted in bad faith. But what if a party intentionally destroys an original for purposes other than depriving the opposing party from being able to introduce it at trial? In an example I gave a couple of days ago, a wife deleted a text message to protect her husband's reputation (because it mentioned smoking weed) rather than to prevent the defendant from introducing it in a wrongful death action. Is that "bad faith" destruction under Rule 1004(a)? And what about if a party destroys an original due to gross negligence? As I have noted, at least court has implied that such negligent destruction might prevent a party from relying on Rule 1004(a)

It seems that the definition of "bad faith" under Rule 1004(a) is very much unsettled. For today's purposes, let's assume that a court applies a very narrow definition of "bad faith." The opinion of the United States District Court for the Eastern District of New York in Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009), raises an interesting question: If a party's destruction of an original isn't quite "bad faith," can't/should the court still give an adverse inference instruction?

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April 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

Loss of Control: Why Should Evidence Admissible Under Rule 1004(d) be Admissible Under Rule 403?

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(d) provides 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.

Meanwhile, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, here's my question: Shouldn't a court (almost) always deem secondary evidence covered by Rule 1004(d) inadmissible under Rule 403?

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April 25, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 24, 2013

More Adventures in the Best Evidence Trade: The Best Evidence Rule & Disputed Facts

In talking with my colleague, Jim Flanagan about my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, we realized that all of the examples that I had given involved mostly undisputed facts and mere disputes as to credibility. Dan and Vince get into a fight, and the only question is whether Dan got a text message placing him in reasonable apprehension of Vince. A wife leaves her husband and returns with the couple's children to the United States, and the only question is whether she read a copy of an e-mail in which the husband professed his love for the wife's sister. A wife starts conducting surveillance on her husband, and the only question is whether she read notes from a veterinarian alleging that the husband had engaged in acts of bestiality against the family dog.

Upon discussing the matter, though, I think that I came up with a pretty good example of a case in which I think that the Best Evidence Rule should apply to evidence/testimony concerning a writing (1) not offered to prove the truth of the matter asserted, but (2) offered to prove disputed facts.

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April 24, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, April 23, 2013

Simply The Best: The Best Evidence Rule as a Non-Exception to the Rule Against Hearsay

In my new essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, I discuss how courts have improperly conflated the rule against hearsay by concluding that evidence/testimony offered to prove something other than the truth of the matter asserted in a document doesn't violate the rule against hearsay...and thus also doesn't violate the Best Evidence Rule. My point in the essay is that the rule against hearsay and the Best Evidence Rule are concerned with similar but distinct things. One way to prove this is to look at the inverse situation. If evidence concerning the contents of a document satisfies the Best Evidence Rule, does it automatically satisfy the rule against hearsay? The answer, of course, is "no."

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April 23, 2013 | Permalink | Comments (0) | TrackBack (0)

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).

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April 22, 2013 | Permalink | Comments (0) | TrackBack (0)