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Rule 1002—Proving the Content of a Writing

June 20, 2011

Let’s start with the rule:

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

The first seven words are the key to Rule 1002: “To prove the content of a writing, … .”  These words require us to ask that now-familiar but critical question “why is the evidence being offered?”  If the evidence is offered for the purpose of proving the content of a writing, Rule 1002 applies.  However, if it is being offered for some other purpose, Rule 1002 does not apply.

It sounds simple, but the distinction can be confusing.  We’ll talk more about this “Central Issue of Rule 1002” in STEP ONE below.  However, before we get around to that, let’s straighten out a few points about Rule 1002:

  1. A party who must prove the content of a writing usually has the original or a suitable duplicate, so Rule 1002 rarely comes into play.  Precisely when evidence is offered “to prove the content of a writing” will be the focus of most of the rest of this blog.  See “STEP ONE” below.
  2. Terms such as “writing” and “original” are defined in Rule 1001.
  3. The rule could apply to any “writing, recording, or photograph,” but I am using “writing” for simplicity.
  4. Even when an original is required, a “duplicate” (also defined) is almost always “admissible to the same extent as an original … .”  This is Rule 1003.  We’ll talk a little about Rule 1003 in STEP TWO below.
  5. This is NOT called the “best evidence rule!”  Those three words, like so many I have jokingly barred from a lawyer’s lexicon, really do not ever need to be used unless you are explaining to another lawyer the proper way to name this!  We’ll talk more about this later in the blog.

The “Steps” in the analysis of a Rule 1002 Question

The authors of Our Book have set out three steps to take whenever a challenge arises under Rule 1002. 

STEP ONE: The Central Issue of Rule 1002

The first step is to ask “why is the evidence being offered?”  If the answer to that question is “for the purpose of proving the content of the writing,” then we have a Rule 1002 problem, and we need to move on to step two.  If not, then Rule 1002 places no limitation on the admissibility of the evidence.  Our Book discusses this step on pages 422-23. 

The primary challenge in step one is determining whether the party offering the evidence is trying “to prove the content of a writing.”  Let’s consider a few examples to illustrate the challenge:

Imagine a case in which the plaintiff (a building contractor) alleges the defendant (the owner of an apartment complex) breached a written contract to pay for the preparation of a plan to repair the common areas of the complex.  The defendant disputes the existence and the terms of the contract.  The plaintiff takes the witness stand to testify that the he and the defendant signed the contract, and to explain the terms.  In doing so, the plaintiff is attempting to use his testimony to prove the terms of the contract (“to prove the content of a writing”).  Because the purpose of the plaintiff’s testimony is “to prove the content of a writing,” he must comply with Rule 1002. 

Let’s use that same contract in a different way to illustrate a situation in which the plaintiff is not trying to prove the content of the writing. 

Imagine that the plaintiff is not the building contractor, but a person later injured as a result of a hazard in the common area.  The plaintiff now seeks to prove that the defendant landlord had notice of a dangerous condition in the common areas.  In order to do that, the plaintiff takes the witness stand to testify that a building contractor and the landlord entered into a written contract months before the injury to develop a plan to repair the dangerous condition.  The plaintiff could argue that he is not offering the testimony to prove the content of the written agreement.  Rather, he is offering the testimony for the purpose of proving the landlord knew of the dangerous condition before the accident.  In this instance, it does not matter what the specific terms of the contract are.  It matters only that the contract acknowledged the allegedly dangerous conditions in the common area.  Since the plaintiff has only to prove the existence of the contract in order to prove notice, he is not offering the testimony to prove the contents. 

This second example is similar to United States v. Sliker, 751 F.2d 477 (2d Cir. 1984), Our Book 412.  In Sliker, the issue was the existence of federal banking insurance, and the court ruled the original insurance policy was not required.  This was true even though the insurance existed only through the written policy.  The issue in Sliker was the existence of the policy, not the specific terms of the policy.  In our first example above, the specific terms of the contract to repair the common areas were the issue; in our second example, even though it was the same contract, the issue was the existence of the contract, not the specific terms.

When Rule 1002 applies because the party is trying to prove the content of a writing, no testimony about the content is permitted, nor are any summaries or other writings.  The only permissible proof is an original, or a duplicate. 

STEP TWO: Rule 1003—The Admissibility of a “Duplicate”

“[T]he second step is to see whether the party is offering a duplicate that [complies with Rule 1003].”  Our Book, 428.  The text of the rule is always a great starting point:

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Note the word “unless.”  This places somewhat of a burden on the party opposing the introduction of the duplicate.  In order to prevent the use of a duplicate, the party opposing its use must show one of the two options.  In option one, the “authenticity” that must be questioned is “of the original.”  So, problems with the duplicate don’t affect its use unless doing so is “unfair” under prong two. 

STEP THREE: Rule 1004—Excusing the Absence of an Original

The third step, which is taken only if no suitable duplicate is offered, is to “justify the non-production of the original” by showing that one of the Rule 1004 exceptions applies.  Our Book, 430.  In this step, we analyze whether “other evidence of contents,” such as testimony or some form of summary, might be allowed despite the application of Rule 1002.  Again, let’s look at the rule:

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if–

There are four “ifs.”  “If” any one of them applies, then Rule 1002 has nothing to say about the admissibility of “other evidence.”  Look at the rule and see what is required before any of the “ifs” apply!

CONCLUSION: What should we call all of this?

There probably never was a requirement that a party offer the “best evidence” of anything.  If ever there did exist such a rule, it does not exist any longer.  However, courts and commentators continued long after the Federal Rules of Evidence to use the term “best evidence rule.”  The Advisory Committee to the Federal Rules called the term “best evidence rule” a “misleading” name even for the ancient concept.  Advisory Committee’s Note to Rule 1001.  McCormick discusses the history of the phrase “best evidence,” and concludes the discussion with a suggestion that the “best evidence rule” doesn’t exist.

While some modern opinions still refer to the “best evidence” notion as if it were today a general governing legal principle, most would adopt the view of modern textwriters that there is no such general rule.

McCormick on Evidence § 230 (6th ed. 2006).

The use of that misleading term is now becoming rare, as it should.  McCormick calls the rule “The Original Document Requirement.”  Id. § 231.  In DeMarco v. Ohio Decorative Products, Inc., 19 F.3d 1432 (6th Cir. 1994), Our Book 409, the court says, “The best evidence rule … is something of a misnomer.  The rule is perhaps more accurately dubbed the original document rule.”  Other than the one reference in the Advisory Committee Note to Rule 1001 that the name is “misleading,” the Federal Rules of Evidence do not mention the best evidence rule, nor do any of the Notes. 

I have an humble suggestion.  Let’s call it what it’s called in the Rules:

Rule 1002—Requirement of Original!

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