Also known as: original documents · originals
Written by attorneys — see sources below.
A writing, recording, or photograph that serves as the primary evidence of its own content under the best evidence rule. Secondary evidence of that content is admissible only when the original is unavailable for reasons such as loss or destruction without bad faith by the proponent or when a statute or rule permits an exception.
Harper & Lane LLP shredded its signed contingency-fee agreement with Ortiz during a routine office downsizing before any dispute arose. At trial the firm offered its secretary's summary and billing printouts to prove the agreement's terms. Because all originals were destroyed without bad faith, the court permitted the secondary evidence to establish the content of the writing.
Coastal Team offered a one-page summary chart compiled from more than four thousand contracts to prove revenue-sharing obligations. The firm made the underlying originals available for examination at league headquarters during ordinary business hours. The court admitted the summary after confirming that the originals could be examined or copied at a reasonable time and place.
Odessa Okada sued Omega Energy in federal court under diversity jurisdiction for breach of a recorded easement. She sought to prove the easement's precise boundaries by introducing a photocopy of the original deed. The court required production of the original document because state law governed the substantive question of what constituted the authoritative writing.
Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation or maintenance of the train. He asserted that he was rightfully on the premises as a licensee because he was on a commonly used beaten footpath which ran for a short distance alongside the tracks. He further alleged that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts. He contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that the Pennsylvania law precluded recovery. The jury brought in a verdict of $30,000. The judgment entered thereon was affirmed by the Circuit Court of Appeals, which held that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law and that upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is. Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, the Supreme Court granted certiorari.
View caseOscar Ortiz claimed that a music publisher's parody infringed his copyrighted song. To prove the substantial similarity of the copied lyrics, Ortiz offered only a handwritten transcription of the original sheet music. The court insisted on the original document to establish the precise content of the protected work.
In 1964, Roy Orbison and William Dees wrote a rock ballad called "Oh, Pretty Woman" and assigned their rights in it to respondent Acuff-Rose Music, Inc. Acuff-Rose registered the song for copyright protection. Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs, collectively known as 2 Live Crew, wrote a song in 1989 entitled "Pretty Woman," which Campbell described in an affidavit as intended through comical lyrics to satirize the original work. On July 5, 1989, 2 Live Crew's manager informed Acuff-Rose that the group had written a parody of the song, that they would afford all credit for ownership and authorship to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew's song. Acuff-Rose's agent refused permission. In June or July 1989, 2 Live Crew released records, cassette tapes, and compact discs of "Pretty Woman" in a collection of songs entitled "As Clean As They Wanna Be." The albums and compact discs identify the authors of "Pretty Woman" as Orbison and Dees and its publisher as Acuff-Rose. Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District Court granted summary judgment for 2 Live Crew. The Court of Appeals for the Sixth Circuit reversed and remanded. The Supreme Court granted certiorari to determine whether 2 Live Crew's commercial parody could be a fair use.
View caseOmar Olson sought to enjoin a newspaper from publishing excerpts of government reports. The government offered only redacted photocopies to demonstrate the documents' sensitive content. The court required the original documents to determine whether their disclosure would cause the claimed harm.
The United States brought suit against the New York Times Company and the Washington Post Company seeking to enjoin publication of material from a classified government study on the history of United States decision-making regarding Vietnam policy. The newspapers had come into possession of the classified documents and had already begun publishing excerpts from the study in their respective newspapers before the government filed for injunctive relief. The District Court for the Southern District of New York ruled in the New York Times case that the government had not satisfied the requirements for imposing a prior restraint. In the parallel Washington Post litigation, the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit both determined that the government had not met its burden. The Supreme Court granted certiorari to review the matters on an expedited schedule. Stays had been entered by the Court of Appeals for the Second Circuit on June 23, 1971, and by the Court of Appeals for the District of Columbia Circuit on June 24, 1971.
View caseOrion Orlov challenged a state criminal statute on equal protection grounds. To prove the statute's text and legislative history, he offered only a typed summary of the session laws. The court required the original document to establish the precise wording that created the classification.
The petitioner, Michael M., was seventeen and one-half years old when, on June 3, 1978, he and two friends approached Sharon, a sixteen-and-one-half-year-old female, and her sister at a bus stop. Petitioner and Sharon had been drinking. They moved away from the others and began to kiss. After petitioner struck Sharon in the face for rebuffing his initial advances, she submitted to sexual intercourse with him. In July 1978, a complaint was filed in the Municipal Court of Sonoma County. The complaint alleged that petitioner had unlawful sexual intercourse with a female under the age of eighteen in violation of section 261.5 of the California Penal Code. Prior to trial, petitioner sought to set aside the information on the ground that the statute unlawfully discriminated on the basis of gender. The trial court denied the motion, and petitioner was convicted after a jury trial. The California Court of Appeal denied petitioner's request for relief.
View caseThe rule requires the original when a party seeks to prove the content of a writing, recording, or photograph and the terms are material to the case. Secondary evidence is permitted only if the original is lost or destroyed without bad faith or another recognized exception applies.
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The proponent must show that all originals were lost or destroyed and that the proponent did not act in bad faith. Routine office policies applied before any dispute arose typically satisfy the good-faith requirement.
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Yes. The proponent must make the underlying originals or duplicates available for examination or copying at a reasonable time and place, and the court may order production in court if needed.
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No. The rule applies only when the party seeks to prove the content of the writing itself. Testimony about events that happen to be recorded in a document does not trigger the requirement.
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…of the Senate and House which have been approved and signed, cause them to be published and distributed, carefully preserve the originals and cause them to be recorded. It provides for the seal of the United States and makes it his duty to keep that seal and to make out, record and affix the seal to all civil commissions…