RULE 1001. DEFINITIONS THAT APPLY
TO THIS ARTICLE
For purposes of this Article the following definitions are
In this article:
(1) Writings and recordings. "Writings" and "recordings"
consist of letters, words, or
numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic recording, or other forms of data
(a) A "writing" consists of letters, words, numbers, or their equivalent set down in any form.
(b) A "recording" consists of letters, words, numbers, or their equivalent recorded in any manner.
(2) Photographs. "Photographs" include still photographs,
X-ray films, videotapes, and
(c) A "photograph" means a photographic image or its equivalent stored in any form.
(3) Original. An "original" of a writing or recording is the
writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it. An
"original" of a photograph includes the negative or any print therefrom. If data are stored in
a computer or similar device, any printout or other output readable by sight, shown to reflect
the data accurately is an "original".
(d) An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout, or other output readable by sight, if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.
(4) Duplicate. A "duplicate" is a counterpart produced by
the same impression as the
original, or from the same matrix, or by means of photography, including enlargements and
miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by
other equivalent techniques which accurately reproduce the original.
(e) A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
Rule 1001 was amended, effective____________________.
Rule 1001 is based on Fed.R.Ev. 1001.
Article X is addressed to that aspect of the law of evidence traditionally termed the "best evidence" rule or, at times, more correctly, the rule requiring the production of original documents. The phrase, "best evidence," does not appear in any of the rules of this Article; its omission was intentional, meant to signify a departure from the interpretation often given the rule, if not from the true import of the rule itself.
Article X applies only to writings, recordings, and photographs. These
items are defined,
for purposes of this Article, in
Rule 1001 this
rule. Paragraph (1) expands Subdivisions (a)
and (b) expand the definitions of "writings "
"recordings " to include not only those documents
produced by traditional methods, such as
handwriting, typing, and printing, but also to include data recorded by means
of in any form
or manner, including by photography, magnetic impulse, and mechanical or electronic
recording. This definition would bring brings within the scope
of these rules sound
recordings as well as data contained in computer banks recorded
digitally and stored
electronically. The reason which gave birth to the "original documents" rule, i.e., the need
for an accurate and honest presentation of written evidence, demands the expanded
application of the rule to these later, modern methods of data recordation
definition is "open-ended, "
encompassing "other form(s) of data compilation" that are
generically similar to those listed. The definition but it is not intended to
which are not representative of words or numbers. Paragraph (2) Subdivision (c) defines
photographs as photographic images in any form,
which would include still photographs, X-rays, videotapes
videos and motion pictures. This
definition is included in a section apart from that defining writings and recordings, for there
will be occasions when Rule 1002, requiring production of an original, will apply to
photographs, not because they are duplicates of writings, but because the contents of the
photographs will be sought to be proved. See Rule 1002 and explanatory note,
An "original," as defined in
subdivision (d) for the purposes of this Article
may be, but will not necessarily be, that document or recording one would ordinarily label
an original, if speaking in lay terms. One would ordinarily think of an original as being the
document, recording, or photograph first made in point of time. But for purposes of this
Article, the definition and existence of an "original" is not dependent upon the chronology
of production. As stated in 5 Weinstein's Evidence 1001-49 (1975):
Instead, it is "The
'original' is the document whose contents are to be proved . Its jural
significance makes it the
original, whether or not it was written before or after another, was copied
from another, or
was itself used to copy from. " Thus, for
For example, in an action for libel, a Xeroxed
photocopy of a letter, if published, would be the "original" for purposes of this
The intent of the parties to a transaction will often bear upon the legal
significance of a
, thus, its status as an original under this rule.
Thus For example, if the parties to
a contract execute several copies, intending that each be legally effective, all copies are
deemed to be "originals." 5 Weinstein,
supra, at 1001-50.
The prints from a photographic negative or a digital image
file are treated as originals, as
the first recognizable the recognizable and tangible
form of a photograph. The
negative and the digital image file, of course, would also be an original in
the usual case
The last sentence of
subdivision (d) accords the status of original to computer
printouts or other output "readable by sight," provided the printout is shown to
reflect the data information it contains. This is a necessary
provision as the underlying data
is not may not be readily comprehensible. Paragraph (4) Subdivision (e) defines
"duplicate," as that term is used in this Article. The
definition is broad enough to include carbon copies, printed items such as newspapers or
other writings produced from a single matrix, Xeroxed
photocopies, microfilms, tape records
of material originally recorded on wire, or other techniques which accurately reproduce the
original. Accurate reproduction of the original is the sole, essential feature of a duplicate
under this rule. There is no requirement that the duplicates be made "in
the regular course
of business " as under prior statutes. See N.D.C.C. § 31-08-01.1.
The duplicating process
itself is deemed considered sufficient to assure
It should be noted at this juncture that two main reasons have been
advanced for the
requirement that original documents be produced: (1) the prevention of inaccurate
reproduction, and (2) the prevention of fraud.
McCormick on Evidence § 231
1972). This paragraph Subdivision (e) provides an assurance of accuracy in
its definition; it
does not deal with the possibility of fraudulent duplications. Rule 1003 ,
infra, is designed
to require production of an original whenever the authenticity of an original is in
Finally, it should be noted that although many nice questions may arise
as to whether a
document is an original or a duplicate, the end result will often be its admission regardless
of its status. Under these rules, except when the authenticity of a writing is questioned or
when it would be unfair to admit a duplicate, duplicates and originals are treated
See Rule 1003, infra.
Rule 1001 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. 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. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
of _______________; January 29, 1976,
page 14. Rule Fed.R.Ev.1001 , Federal Rules of
Evidence; Rule 1001, SBAND proposal.
Considered: N.D.C.C. § 31-08-01.1.
Cross Reference: N.D.R.Ev. 1002 (Requirement of the Original), N.D.R.Ev. 1003 (Admissibility of Duplicates).