EvidenceProf Blog

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

Friday, March 29, 2013

The Best of Everything: Court Strikes Portions of Affidavit Referencing Non-Produced E-Mails in Fraud Case

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.

A few days ago, I posted an entry about the Best Evidence Rule and the exchange of text messages between a criminal defendant and an alleged victim. Today, let's look at Grant v. Van Natta, 2013 WL 466212 (S.D. Ind. 2013), a case involving the Best Evidence Rule and the exchange of text messages between a civil plaintiff and a civil defendant.

Van Natta 

involve[d] claims for fraud, breach of contract, conversion, and securities violations brought by Plaintiff Mark Grant against Defendants Todd A. Van Natta, Oksana International LLC...and Van Natta Asset Management, LLC.

In support of his Motion for Summary Judgment, Grant submitted an affidavit.

Mr. Grant submitted only one email from Mr. Van Natta to Mr. Grant—as Exhibit A to the Grant Affidavit. Yet, the Grant Affidavit contain[ed] several statements that Mr. Van Natta made various misrepresentations via email communication to Mr. Grant. For example, Mr. Grant alleges that: "[i]n Mr. Van Natta's many e-mails to me about this investment opportunity, Mr. Van Natta repeatedly referenced a name associated with a website of which I was previously a client."...Although the email dated June 1, 2010, at 10:11 AM, bears the subject line "business investment—from oksana," this is the only email in evidence, not "many emails" and no "repeated reference" to the name "Oksana" has been shown by the documentary evidence submitted by Mr. Grant.  

Similarly, Mr. Grant claims that "[i]n these e-mails, Mr. Van Natta made multiple pitches to me about the opportunities presented by my investment in the Company [Oksana International]. Mr. Van Natta made affirmative representations to me in his e-mail exchanges in which he touted the strengths of the Company's investments, business holdings and financial condition."...Yet, in the June 1, 2010 email, Mr. Van Natta does not refer to Oksana International and does not mention any strengths of the Company, its financial condition, or any holdings of the business. According to paragraph 4 of the Grant Affidavit, Oksana International was not formed until three days later, on June 4, 2010.... 

Moreover, Mr. Grant states that "Mr. Van Natta also claimed that the Company had invested in a Jamaican hotel named the 'Blue Cave Castle,' the purchase of which was already under contract, with $781,800.00 of the Company's money already held in an escrow account for the benefit of the purchase. Mr. Van Natta sent me, via interstate e-mail, a copy of the 'purchase agreement' as well as a 'receipt' for the money held in escrow."...Van Natta's June 1, 2010 email does not state that Oksana International has invested in Blue Cave Castle, and he does not state that Oksana International had provided $781,800, which was being held in escrow.

In deciding whether to strike the portions of the affidavit referencing e-mails not included in the affidavit, the court noted with regard to the Best Evidence Rule that

"Several rationale underlie the best evidence rule."..."The rule discourages fraud; it reduces problems with inaccurate reproductions; it minimizes the particularly problematic inaccuracy encountered when oral testimony purports to recount the terms of a writing from memory."

The court then concluded that

These concerns exist here where Mr. Grant is attempting to testify to statements allegedly made by Mr. Van Natta in email messages to Mr. Grant, yet Mr. Grant has not submitted these emails in support of his Motion for Summary Judgment. Mr. Grant does not provide any explanation or exception that would excuse the required introduction of the original emails. See Fed.R.Evid. 1004.

Accordingly, the court struck the relevant portions of Grant's affidavit because they were "attempt[ing] to prove the contents of a writing without introducing the writing in contravention of Fed.R.Evid. 1002."



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