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Effective Date: 3/1/2014

In this article:

(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.

(c) A "photograph" means a photographic image or its equivalent stored in any form.

(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.

(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 March 1, 2014.

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 this rule.

Subdivisions (a) and (b) expand 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 in any form or manner, including by photography, magnetic impulse, and mechanical or electronic recording. This definition brings within the scope of these rules sound recordings as well as data 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 recording. The definition is open-ended, but it is not intended to include symbols which are not representative of words or numbers.

Subdivision (c) defines photographs as photographic images in any form, which would include still photographs, X-rays, 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.

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. Instead, it is the document whose contents are to be proved, whether or not it was written before or after another, was copied from another, or was itself used to copy from. For example, in an action for libel, a photocopy 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 its status as an original under this rule. For example, if the parties to a contract execute several copies, intending that each be legally effective, all copies are "originals."

The prints from a photographic negative or a digital image file are treated as originals, as they are the recognizable and tangible form of a photograph. The negative and the digital image file, of course, would also be originals.

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 accurately reflect the information it contains. This is a necessary provision as the underlying data may not be readily comprehensible.

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, 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. The duplicating process itself is considered 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. Subdivision (e) provides an assurance of accuracy in its definition; it does not deal with the possibility of fraudulent duplications. Rule 1003 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.

Rule 1001 was amended, effective March 1, 2014, 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.

SOURCES: Joint Procedure Committee Minutes of September 27, 2012, pages 26-27; January 29, 1976, page 14. Fed.R.Ev. 1001; Rule 1001, SBAND proposal.

Statutes Affected:

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).

Effective Date Obsolete Date
03/01/2014 View
01/29/1976 03/01/2014 View