The Best Evidence Rule: It’s the Original Document

Print Article

Posted on: Nov 20 2024

In litigation, parties often dispute the content and meaning of documents that form the basis of their dispute. Too many times a litigant will say that they “have a copy” of a document that is material and necessary to their claim or defense. But, the question is whether that document is the “best evidence” available.

“The ‘oft-mentioned and much misunderstood’ best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven.”[1] “At its genesis, the rule was primarily designed to guard against ‘mistakes in copying or transcribing the original writing.’”[2] “Given the technological advancements in copying, in modern day practice the rule serves mainly to protect against fraud, perjury and ‘inaccuracies … which derive from faulty memory.’”[3]

“[S]econdary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.”[4] The party seeking to admit secondary evidence (e.g., a copy) due to loss must show that he/she undertook “a diligent search in the location where the document was last known to have been kept, and [provide] the testimony of the person who last had custody of the original.”[5] “The more important the document is to the resolution of the ultimate issue in the case, the stricter the requirement of establishing its loss.”[6] “Once a sufficient foundation for admission is presented, the secondary evidence is ‘subject to an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with [the] final determination left to the trier of fact.’”[7]

In Deutsch v. Deutsch, 2024 N.Y. Slip Op. 05786 (2d Dept. Nov. 20, 2024) (here), the Appellate Division, Second Department considered an appeal involving the denial of plaintiff’s motion to enforce a postnuptial agreement between the parties. As discussed below, the Court affirmed, finding that plaintiff failed to present the best evidence of the parties’ agreement.

The parties were married on September 10, 1998. In December 2018, plaintiff commenced the action for a divorce and ancillary relief. Thereafter, plaintiff moved to enforce a postnuptial agreement she alleged she and defendant entered into in August 2000. Plaintiff attested, inter alia, that defendant stole and destroyed the original postnuptial agreement, and she submitted a purported copy of the postnuptial agreement, which was unsigned and undated. Defendant opposed the motion, contending, among other things, that he did not steal or destroy the original postnuptial agreement and that the purported copy of the postnuptial agreement was not an accurate portrayal of the original.

In an order entered on December 15, 2020, the Supreme Court denied plaintiff’s motion. Plaintiff appealed.

The Second Department affirmed.

The Court held that the motion court “properly denied the plaintiff’s motion to enforce the postnuptial agreement between the parties.”[8]

The Court found that “even though the plaintiff sufficiently explained the unavailability of the original postnuptial agreement …, she failed to meet her heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original.…”[9] The Court noted that “[a]lthough the plaintiff’s former counsel attested that he retained a final, unsigned digital copy of the postnuptial agreement, which was purportedly identical to the original postnuptial agreement signed by the parties, the digital copy contained grammatical errors and different fonts throughout the document.”[10] The Court concluded that “[s]ince the defendant contended that the copy submitted by the plaintiff was not an accurate portrayal of the original … the plaintiff failed to establish her heavy burden of showing that the proffered copy was reliable and accurate.”[11]

____________________________________________

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Schozer v. Wm. Penn Life Ins. Co., 84 N.Y.2d 639, 643-44 (1994) (quoting Sirico v. Cotto, 67 Misc. 2d 636, 637 (Civ. Ct., N.Y.C. Sept. 7, 1971); and citing Trombley v. Seligman, 191 N.Y. 400 (1908); 57 N.Y. Jur 2d, Evidence and Witnesses, § 247, at 496)).

[2] Id. (quoting Fisch, N.Y. Evid. § 81, at 50 (2d ed)).

[3] Id. See also Mutlu v. Mutlu, 177 A.D.3d 979 (2d Dept. 2019).

[4] Id. at 644 (citations omitted); see also Amica Mut. Ins. Co. v. Kingston Oil Supply Corp., 134 A.D.3d 750, 752 (2d Dept. 2015); Stathis v. Estate of Karas, 130 A.D.3d 1008, 1010 (2d Dept. 2015); Kliamovich v. Kliamovich, 85 A.D.3d 867, 869 (2d Dept. 2011).

[5] Id. (citations omitted); see also Amica Mut. Ins., 134 A.D.3d at 752. The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility.” Schozer, 84 N.Y.2d at 645 (internal quotation marks omitted).

[6] Id. See also Amica Mut. Ins., 134 A.D.3d at 752.

[7] Id. at 646 (quoting United States v. Gerhart, 538 F.2d 807, 809 (8th Cir. 1976)).

[8] Slip Op. at *1.

[9] Id. (citations omitted).

[10] Id.

[11] Id.