Legal Memorandum: Best Evidence Rule

Issue: Under federal law, does the Best Evidence Rule require that a company maintain original paper copies of all its contracts or is it permissible for such paper documents to be reduced to digital images for storage purposes with the paper copies being destroyed?

Generally, the question regarding original contracts or agreements seems to return to the Best Evidence Rule.  “The underlying purpose of the best-evidence rule is to prevent fraud or mistake in proof of the contents of a writing.”  29 Am. Jur. 2d Evidence, § 1602 (citing U.S. v. Yamin, 868 F.2d 130 (5^th Cir. 1989)).  The Rule requires the original writing be produced unless it is unavailable for some reason other than the fault of the proponent.  Id. (citations omitted).  “The best evidence rule applies, and an original is required, only when a writing is introduced to prove the contents of a writing, recording, or photograph, or to establish the existence of such documents . . . .”  29 Am. Jur. 2d Evidence, § 1603 (citing Spurgeon v. State, 560 So. 2d 1116 (Ala. Crim. App. 1989)).

Rules 1001 through 1004 of the Federal Rules of Evidence embody the “best evidence rule.”  In particular, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”  Fed. R. Evid. 1002.  However, “[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”  Fed. R. Evid. 1003.  Original and duplicate are defined as:

(a)        An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the […]

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