N.D.R.Civ.P.
RULE 44. PROOF OF PROVING AN OFFICIAL
RECORD
(a) Authentication of copy Means of Proving.
(1) Domestic Record.
An official record kept within the United States, or any state, district, or
commonwealth,
or within a territory subject to the administrative or judicial jurisdiction of the United States,
or an entry therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the
record, or by the officer's deputy, and accompanied by a certificate that the officer has the
custody. The certificate may be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated by the seal of the court, or
may be made by any public officer having a seal of office and having official duties in the
district or political subdivision in which the record is kept, authenticated by the seal of the
officer's office. A public officer having a seal may make such certificate with respect to
records in the officer's custody.
Each of the following evidences an official record, or an entry in it, that is otherwise admissible and is kept within the United States, any state, district, or commonwealth, or any territory subject to the administrative or judicial jurisdiction of the United States:
(A) an official publication of the record; or
(B) a copy attested by the officer with legal custody of the record, or by the officer's deputy, and accompanied by a certificate that the officer has custody. The certificate must be made under seal:
(i) by a judge of a court of record in the district or political subdivision where the record is kept; or
(ii) by any public officer with a seal of office and with official duties in the district or political subdivision where the record is kept.
(2) Foreign Record.
A foreign official record, or an entry therein, when admissible for any purpose, may
be
evidenced by an official publication thereof; or by a copy thereof, attested by a person
authorized to make the attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (i) of the attesting person, or (ii) of any
foreign official whose certificate of genuineness of signature and official position relates to
the attestation or is in a chain of certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by a secretary of embassy or
legation, consul general, consul, vice consul, or consular agent of the United States, or a
diplomatic or consular official of the foreign country assigned or accredited to the United
States. If reasonable opportunity has been given to all parties to investigate the authenticity
and accuracy of the documents, the court may, for good cause shown, (i) admit an attested
copy without final certification or (ii) permit the foreign official record to be evidenced by
an attested summary with or without a final certification. The final certification is
unnecessary if the record and the attestation are certified as provided in a treaty or
convention to which the United States and the foreign country in which the official record
is located are parties.
(A) In General. Each of the following evidences a foreign official record, or an entry in it, that is otherwise admissible:
(i) an official publication of the record; or
(ii) the record, or a copy, that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.
(B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.
(C) Other Means of Proof. If all parties have had a reasonable opportunity to investigate a foreign record's authenticity and accuracy, the court may, for good cause, either:
(i) admit an attested copy without final certification; or
(ii) permit the record to be evidenced by an attested summary with or without a final certification.
(b) Lack of a Record.
A written statement that after diligent search no record or entry of a specified tenor
is found
to exist in the records designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record, or complying with the requirements of
subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible
as evidence that the records contain no such record or entry.
A written statement that a diligent search of designated records revealed no record or entry of a specified tenor is admissible as evidence that the records contain no such record or entry. For domestic records, the statement must be authenticated under Rule 44(a)(1). For foreign records, the statement must comply with (a)(2)(C)(ii).
(c) Other Proof.
This rule does not prevent the proof of official records or of entry or lack of entry
therein
by any other method authorized by law.
A party may prove an official record, or an entry or lack of an entry in it, by any other method authorized by law.
EXPLANATORY NOTE
Rule 44 was amended, effective March 1, 1990; March 1, 1994; ________________.
Rule 44 is identical to Rule 44, FRCivP, except for style changes and the addition
of a
provision to subdivision (a) allowing a public officer having a seal to make a certificate with
respect to records in the public officer's own custody derived from Fed.R.Civ.P.
44.
Rule 44 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 44 was amended, effective March 1, 1994, to track the 1991 federal amendment, by striking the reference to specific territories and adding a generic term to describe governments having a relationship with the United States such that their official records should be treated as domestic records; and by adding the provision that final certification is unnecessary if the record and attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties.
Rule 44 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of January 28-29, 2010, pages 3-4;
September 24-25, 2009, page 14; October 29-30, 1992, page 10; April 20, 1989, page 2;
December 3, 1987, page 11; November 29-30, 1979, page 11; Rule
Fed.R.Civ.P. 44,
FRCivP.
Cross Reference: Rule N.D.R.Crim.P. 27 (Proof of Official
Record), N.D.R.Crim.P.; Rules
N.D.R.Ev. 901 (Requirement of Authentication or Identification) and
N.D.R.Ev. 902 (Self-authentication), N.D.R.Ev.