Tuesday, December 1, 2020
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
Meanwhile, Federal Rule of Evidence 1003 states that
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
Finally, Federal Rule of Evidence 1004(a) states that
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith.
So, what's the interplay among these 3 rules? That was the question addressed by the United States District Court for the Eastern District of Arkansas in Allied World Insurance Co. v. CMM Mechanical, LLC, 2020 WL 6833474 (E.D.Ark. 2020).
In CMM Mechanical, a defendant -- Michael Brooks -- argued that the plaintiff Allied World Insurance Company "possesses only a photocopy of the original indemnity agreement thus violating the best evidence rule." But, as you can see from the above, the Best Evidence Rule can be satisfied through an original (Rule 1002) or a duplicate (Rule 1003). That said, a duplicate is not admissible if there is "a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate." And Brooks "further argue[d] that a copy of the indemnity Agreement is inadmissible because there is a genuine question of fact as to the authenticity of the original because he allege[d] that his signature ha[d] been forged,"
But, according to the court,
whether there is a genuine question of authenticity does not have to be addressed here because Federal Rule of Evidence 1004(a) allows the photocopied indemnity agreement to be admitted. Federal Rule of Evidence 1004(a) states that “[a]n 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.”...Losing or destroying the original document as a result of negligence is not considered to be in bad faith....If the original has been lost or destroyed, the proponent may “[p]rove the contents of a writing by any secondary evidence.”...There is no requirement for clear and convincing evidence of authenticity and accuracy for a copy to be admitted.
The court then held that
The record evidence before the Court shows that Allied World openly admits that the original copy of the Indemnity Agreement no longer exists, and Mr. Brooks has alleged no wrongdoing on the part of Allied World in its failure to produce the original. Therefore, based on the record evidence before it, the Court concludes that the original Indemnity Agreement was not lost or destroyed in bad faith because there is no allegation of wrongdoing before the Court and because Allied World admits that only copies presently exist.
The next step is to evaluate the secondary evidence that can be used to prove the contents of the original Indemnity Agreement through the copy. Notary Mr. Lar testified at his deposition that he personally witnessed Mr. Brooks sign the copy of the original Indemnity Agreement and placed the seal on the documents afterward...The parties will be allowed to argue over the weight that should be given to Mr. Lar's testimony at a later stage in the proceedings, and that decision should ultimately be left to the trier of fact. At this stage, there exists only an admissibility issue as to the copy of the Indemnity Agreement. The testimony of the notary Mr. Lar that he saw Mr. Brooks sign the original Indemnity Agreement is sufficient secondary evidence to prove the contents of the copy for the purposes of denying summary judgment.