Agnes and the Best Evidence Rule or Why You’ll Never Get an Original Copy and Why It Doesn’t Matter

In his analysis of Bull v. United Parcel Service Inc., 665 F.3d 68, 25 AD Cases 1204 (3d Cir. 2012), Judge Ronald J. Hedges (ret.) raised several interesting questions, including:

• What is the original of a particular electronic “document”?
• Where is the original stored?
• Prior to the filing of a complaint or an answer, what inquiries must the attorney make about “originals,” if any? (See, “Appellate Court Reverses Dismissal of Case for Failure to Produce Notes,” 12 DDEE 29, 1/19/12.)

Why It Matters.

The answers to these seemingly existential questions are actually rather technical in nature. As ever increasing volumes of electronically stored information (ESI) figure prominently in litigation, it becomes important to understand how to answer these questions.

It turns out that, philosophically, you can’t get an original without impounding the physical computer. However, it doesn’t matter operationally because legally the Federal Rules of Evidence provide a solution by allowing reliance on the normal output of a normal computer process.

Now that we’ve seen the answer, let’s “show our work” so to speak. Let’s see why this statement appears true and understand how the technology works.

Although understanding how the technology works can require a multi-year formal education or years of experience working with the technology, this article attempts to answer these questions by analogizing the complex processes that underlie the generation and replication of ESI to traditional storage and retrieval of hard copy documents.

Meet Agnes, The Perfect File Clerk.

Imagine for a moment that you work in a large company that has hired a very eccentric file clerk. Her name is Agnes.

Agnes has a very peculiar mandate: she stores all the documents and all the pictures that the company generates or receives. Whenever you want to save a document, you bring it to Agnes. Whenever you want to retrieve one, you get it from Agnes; the same applies to pictures.

Now, Agnes is eccentric. She grew up in a very mathematical family and she has a very peculiar way of saving documents. It’s hard to believe, but she actually changes each document into a very long numerical code.

It’s long because she converts each letter into a 8-digit number. Then she stores the numbers on small scraps of paper, and puts the paper into little boxes— exactly 1024 pieces per box.

Next, she stores the boxes in a huge storeroom beneath the headquarters. Usually she stores the boxes for a given document in sequence—usually. If not, she adds little clues in the first box to help her find the next box, and so on.

But don’t worry. Agnes keeps a list in her office of all the documents she’s holding and where the boxes are located (or at least where they start). Whenever you ask for a document Agnes looks it up in her list, goes to the storeroom to get the boxes, decodes the numbers, types up your document on a fresh piece of paper, and gives it to you.

By the way, Agnes types very quickly. She does this in less than a minute—every time. And the document looks great. Every time. In fact, it looks perfect—every time.

Agnes and Pictures.

She does something similar for pictures. For them, Agnes overlays a grid on the picture and assigns each box of the grid a number representing the color in each hole of the grid. It’s a very small grid, like the screen on a screen door. It’s so small that there are over one million holes in the screen.

Then, as with the document, she writes the numbers on small pieces of paper, puts them in boxes, and puts the boxes in the storeroom. When you ask for a picture, she looks it up, gets the boxes, pulls out a new canvas, and paints a fresh picture and gives it to you.

By the way, Agnes also paints very quickly. She does this in less than a minute—every time. And the picture looks great—every time. In fact it looks perfect—every time.

In her master list, Agnes has to remember if a given item is a document, or a picture. She once tried to paint according to the numbers for a document, but that did not work out very well. She also once tried to type according to the numbers for a painting, which also did not work out very well. Otherwise this system has been working reliably for years.

In fact, this system has been working reliably for so long that sometimes Agnes rearranges the storeroom. When she does, though, she doesn’t physically move the boxes around. (Did I mention that she was eccentric?) She determines where she would like the boxes to be, gets a new box, puts numbered slips of paper in the new box that are exactly the same as the slips in the old box and when she is sure that they are identical she throws the old box away, or ignores it, and the next time that you ask for a document or picture, Agnes goes to the new box, not the old one.

Imagine now, that you are sued. And the lawsuit requires a letter that you wrote last year. And the court demands that you produce “the original document.” Do you have a problem?

Agnes’ Real Identity,

As you’ve guessed by now, Agnes is a computer. And this story of Agnes is a simplified version of the way that computers work.

Throw in some variations, like the fact that Agnes doesn’t always use paper (sometimes she uses stone tablets, or dice, or magnets), a few hundred other types of files, a variety of encoding methods, and ad hoc ways to accommodate other languages and the analogy becomes more detailed.

The Legal Standard.

It appears that Agnes’ fresh copy is our only choice if we want a meaningful document that the court can handle. Is this a sufficient production and will it be admissible?

Under the best evidence rule, which dates back to Omychund v. Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33, Lord Harwicke stated that no evidence was admissible unless it was “the best that the nature of the case will allow.” This rule has been codified in the Federal Rules of Evidence as FRE 1001 through 1008.

FRE 1001 defines what a recording, and original and a duplicate are. As the committee notes describe, Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965).

The rules are instructive on the “Best Evidence Rule,” or more appropriately the “Original Writing Rule,” because FRE 1001 et al. do not require the introduction of the “best” evidence to prove the contents of a writing but more importantly proof by the “original” or “duplicate”.

Unfortunately, the subsequent case law is not as helpful as the committee notes.

The original writing rule as set forth in FRE 1002 is applicable to ESI. As Judge Grimm noted in Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007),

“[t]he rule generally requires the original of a writing when the contents are at issue, except that a duplicate is also admissible unless a genuine issue is raised about its authenticity. A duplicate includes a counterpart produced by ‘electronic re-recording, which accurately reproduces the original.’ ”

However, when it comes to judges’ applying the original writing rule to electronic information, the results are not as clear and straightforward.

For example, in Armstrong v. Executive Office of the President,
1 F. 3d 1274 (D.C. Cir. 1993) while the Court did not discuss the original writing rule, the Court noted the gap in information provided by paper printouts of electronic originals versus the actual electronic originals when analyzing compliance with the Federal Records Act.

In Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002), the Court determined that the requirements of the state equivalent of FRE 1002 were met by copied and pasted instant messages in a word-processing document, and were sufficient for purposes of the original writing rule.

Finally, in In re Gulph Woods Corp., 83 B.R. 373 (Bankr. Ct. E.D. Pa. 1988), the Court was addressing the admissibility of monthly statements when it stated that “a computerized record may be admitted into evidence as an ‘original’ only after the Court has made a fact-specific determination as to the intent of the drafters and the accuracy of the documents.”

The Court in In Re Gulph Woods Corp. went on to hold that “a computerized business record, prepared simultaneously with or within a reasonable time period of the written record, and containing the same or similar information, would appear to be no less an ‘original’ than a handwritten record.”

A Distinction Without a Difference?

While there are different degrees of rigor necessary to authenticate ESI, courts often make decisions on the admissibility of computer-based records without making or discussing the distinction between originals and duplicates.

While this approach might be comforting to some who do not think the distinction is necessary or important, for practitioners, this ambiguity could be disastrous if a party failed to get a key piece of evidence admitted because what was proposed did not “reflect the data accurately” as required by FRE 1001(3).

For example, many e-evidence buffs are closely watching the case of Ceglia v. Zuckerberg (No. CV-00569A(F) ) in federal court in the Western District of New York where the parties are fighting about the authenticity of a contract allegedly executed by the plaintiff Paul Ceglia and defendant Mark Zuckerberg in August 2003 establishing a 50/50 partnership to develop and commercialize business ventures one of which is Facebook.

At issue is the authenticity of the contract and the existence of the original where the contract at issue was created on someone’s dorm room computer nearly 10 years ago. When considering what is at stake, especially in light of Facebook’s potential multi-billion dollar IPO, the import of the authenticity issue is well worth watching.

Conclusion.

Although the ease with which ESI can be replicated has blurred the distinction between originals and duplicates in daily life, this distinction still warrants consideration.

The rules allow, and even support, the use of computer printouts as originals. The case laws supports the printout as an original, or at least as re-casts of “original writings” (as opposed to original documents).

Nevertheless, counsel should ensure that any document can be shown to accurately reflect the data it purports to represent.