RULE 44. PROOF OF OFFICIAL RECORD
Effective Date: 3/1/1994
Obsolete Date: 3/1/2011
(a) Authentication of Copy.
(1) Domestic. 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.
(2) Foreign. 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.
(b) Lack of 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.
(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.
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).