RULE 44. PROVING AN OFFICIAL RECORD
Effective Date: 3/1/2011
(a) Means of Proving.
(1) Domestic Record. 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:(2) Foreign Record.(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.(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(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.
(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.(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 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. A party may prove an official record, or an entry or lack of an entry in it, by any other method authorized by law.
Rule 44 was amended, effective March 1, 1990; March 1, 1994; March 1, 2011.
Rule 44 is 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 March 1, 2011, 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; Fed.R.Civ.P. 44.
CROSS REFERENCE: N.D.R.Crim.P. 27 (Proof of Official Record); N.D.R.Ev. 901 (Requirement of Authentication or Identification) and N.D.R.Ev. 902 (Self-Authentication).