RULE 1001. DEFINITIONS
For purposes of this Article the following definitions are applicable:
(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 form of data compilation.
(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(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."
(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.
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.
Paragraph (1) expands the definitions of "writings" and "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 photography, magnetic impulse, and mechanical or electronic recording. This definition would bring within the scope of these rules sound recordings as well as data contained in computer banks. 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. The definition is "open-ended," encompassing "other form(s) of data compilation" that are generically similar to those listed. The definition is not intended to include symbols which are not representative of words or numbers.
Paragraph (2) defines photographs as still photographs, X-rays, video tapes 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, infra.
An "original," as defined in paragraph (3) 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):
"The "original' is the document whose contents are to beproved. 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 example, in an action for libel, a Xeroxed copy of a letter, if published, would be the "original" for purposes of this rule.
The intent of the parties to a transaction will often bear upon the legal significance of a writing and, thus, its status as an original under this rule. Thus, 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 are treated as originals, as they are the first recognizable form of a photograph. The negative, of course, would also be an original in the usual case.
The last sentence of paragraph (3) accords the status of original to computer printouts "readable by sight," provided the printout is shown to accurately reflect the data it contains. This is a necessary provision as the underlying data is not readily comprehensible.
Paragraph (4) 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 copies, 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. See31-08-01.1, NDCC. The duplicating process itself is deemed sufficient to assure accuracy.
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 (2d ed. 1972). This paragraph 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 issue.
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 interchangeably. See Rule 1003, infra.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 14. Rule 1001, Federal Rules of Evidence; Rule 1001, SBAND proposal.