EvidenceProf Blog

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

Thursday, January 6, 2022

Southern District of New York Makes Seemingly Erroneous Best Evidence Ruling in Lawsuit Against Fat Joe Over "All the Way Up"

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 1003 provides 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.

Moreover, 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.

In Elliott v. Cartagena, 2022 WL 44749 (S.D.N.Y. 2022), the Southern District of New York found that both of these exceptions applied, but I think only the latter applied.

According to the court,

The underlying facts are largely undisputed. Central to the narrative is a meeting between Fat Joe and [Eric] Elliott in March 2016 at which Elliott signed a “piece of paper” and received a $5,000 check....This meeting was preceded by a call between Fat Joe and Elliott in early March 2016, in which Elliott requested payment “up-front or publishing going forward” as a means of credit or compensation for his contribution to “All The Way Up.”...

Following the conversation, Elliott and Fat Joe met at an IHOP in mid-March 2016....At this meeting, Fat Joe presented Elliott with a “piece of paper” and a $5,000 check, which had a memo line that read “write.”...Following a short discussion, Elliott signed the “piece of paper,” which he left with Fat Joe, and took the check, which he later deposited. 

Elliott later brought an action alleging copyright infringement based on claims that he is the co-author and co-owner of the song “All The Way Up.” Fat Joe countered by moving for summary judgment, claiming that the piece of paper Elliott signed released all copyright claims. Fat Joe's attorneys, however, could not find a signed copy of the piece of paper. Instead, they presented an unsigned draft of the paper. Fat Joe also submitted a sworn declaration that he printed this draft of the paper "without altering it and brought it to the meeting with Elliott."

The Southern District of New York began by finding that draft of the paper was a duplicate, but I disagree. Federal Rule of Evidence 1001(e) defines a "duplicate" as

a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

This would involved things such as a photocopied or scanned copy of a completed contract. But that's not what we had here. Here we had a copy of an unsigned draft, not a duplicate of an executed original agreement. Therefore, Rule 1003 should not have applied.

That said, the court went on to find that the original signed paper was lost or destroyed in the absence of bad faith, meaning its contents could be proven through secondary evidence, such as the copy of the draft contract.

-CM

https://lawprofessors.typepad.com/evidenceprof/2022/01/federal-rule-of-evidence-1002-the-best-evidence-rule-provides-that-an-original-writing-recording-or-photograph-is-requ.html

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Comments

I disagree with you and the court. I think the printout is an "original." Rule 1001(d) defines "original" as: "For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information."
Also, if this doesn't apply, then it is a duplicate since it is produced by "electronic ... process."

Posted by: Fred Moss | Jan 7, 2022 10:18:04 AM

Fred: But what about the argument that it's neither an original nor a duplicate because it is unsigned?

Posted by: Colin Miller | Jan 7, 2022 12:45:24 PM

It's a tough call given the out-dated language of the FRE. But, I'd argue that the paper is an original of the paper brought to the meeting (and the terms of the agreement). Whether it was signed or not is a different question. The FRE need to be up-dated. I suppose soon we'll be debating whether a hologram is an "original."

Posted by: Fred Moss | Jan 7, 2022 1:18:39 PM

Speaking of the Best Evidence Rule, I think it’s always nice to have an actual copy of the decision under discussion. I found a PDF link at Justia; see below. Hopefully it’s a permanent link and won’t expire any time soon.

https://cases.justia.com/federal/district-courts/new-york/nysdce/1:2019cv01998/511185/192/0.pdf

Bottom line, I agree with Prof. Moss. I think lawyers tend to get fixated—and rightly so—on things like document signatures. But in this case, it’s clear that no dispute exists over whether Elliott signed the agreement. (See, e.g., p. 10 [“[T]here is no dispute that a signed, original version of this agreement existed, as has been attested to by both defendants and Elliott.”].) The only issue concerning the agreement is what terms it contained. And here—to use a musical expression—what Fred Said is Right. Putting aside the eventual signature, a printout of the pre-signature draft is absolutely a permissible duplicate under Rules 1003 and 1001(e). A printout is “a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique” and it “accurately reproduces the original” terms of the agreement Elliott ultimately signed. It may not reproduce the signature, but again, that’s not disputed; it certainly reproduces the terms, which didn’t change just because he signed the agreement.

Having the benefit of the underlying “best evidence” of the court’s ruling, I also quibble slightly with how the opinion’s described here. The court didn’t actually decide the 1003 issue in this latest 2022 ruling. That actually happened almost 1.5 years ago. Page 9 of the current (2022) decision shows that the court already “held that the Draft Agreement … is admissible as a duplicate to the same extent as the original agreement under Fed. R. Evid. 1003” back in its “July 31, 2020 Order.” (That 2020 order is ECF No. 166, for anyone motivated enough to retrieve it.) This latest 2022 ruling only decided the 1004 issue.

Reading the actual decision also explains the delay between the earlier July 2020 ruling and this latest one. Apparently, to prove the unavailability of the original, signed agreement for 1004(a) purposes, both Fat Joe and his then-counsel spent a fair bit of time vainly scouring their files and asking around in hopes of locating it. They also went on a bit of a wild goose chase in trying to contact Fat Joe’s former manager, because they suspected the executed agreement might have ended up with the manager. Not only were those efforts ultimately futile, but they also consumed half a year. It’s sort of an amusing mental picture to imagine Fat Joe and his ex-lawyer rummaging through all their files, desperately contacting potential leads on the agreement’s whereabouts, and then putting out an APB for the ex-manager, who never turned up in the end. I think it’s also a good practice pointer for attorneys. Fat Joe’s ex-lawyer noted that she delegated the responsibility for record-keeping to his then-manager, but maybe in retrospect she would have been wise to get copies for her own files too.

Finally, I’m still confused about one thing. As noted, the court already decided the 1003 issue in Fat Joe’s favor a long time ago. So why did it also have to go through all the 1004(a) analysis? Isn’t supporting admissibility via 1003 sufficient by itself? Profs. Miller and/or Moss, do you know? Thanks!

Posted by: kotodama | Jan 10, 2022 11:50:14 AM

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