The Documentalist

Legal Considerations for Electronic Evidence, Part 5: Original vs. Duplicate Documents & Unfair Prejudice

Posted in Reports by Sarah on July 27, 2010

This is the fifth and last post in a series discussing a legal opinion that focuses on establishing electronic documentation as evidence for legal proceedings within the United States legal system.  The opinion was written in response to a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary footwork and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must be addressed when submitting electronic evidence–just as would be done for paper evidence.  The issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.

The current post considers two issues–original versus duplicate documents and unfair prejudice.  The first issue considers whether duplicates of certain types of original documents can stand as evidence in a case, while the second issue considers the possible harm that a potential piece of evidence could cause if it is admitted for a case.  This evaluation is the final hurdle that a document must cross before it can be fully accepted as a piece of evidence.


The Original Writing Rule

One of the last steps in determining whether electronic documentation can stand as evidence  is to prove that the contents of the document are indeed…the contents of the document.  This is accomplished by applying the the “original writing rule,” which, “…requires an original or duplicate original to prove the contents of a writing, recording or photograph unless secondary evidence is deemed acceptable” (Lorraine v. Markel, Pp. 83):

…the key to the rule is to determine when the contents of a writing, recording or photograph are being proved, as opposed to proving events that just happen to have been recorded or photographed, or those which can be proved by eyewitnesses, as opposed to a writing or recording explaining or depicting them (Ibid).

In short, this step is about proving the document, not the events captured or reflected in the document.  For the purposes of proving the content of a document, the original piece of writing, photograph, or audio recording is, of course, the strongest proof of content, but in most cases a duplicate of the original can stand in for the “original writing.”  According to Federal Rule of Evidence 1003, “duplicates are co-extensively admissible as originals, unless there is a genuine issue as to the authenticity of the original, or the circumstances indicate that it would be unfair to admit a duplicate in lieu of an original” (as cited in Lorraine & Mack v. Markel, p. 84).  Thus, as a result of this rule, duplicates are more frequently admitted into evidence than are originals, with a variety of items counting as adequate duplicates: copies of pages of books, treatises, and other papers, photocopies of original text, reprints of photographs, or copies of audio and video recordings.

In the very few cases when an original is not available either as itself or in a duplicate form, secondary evidence can be submitted as proof of content for a writing, photograph, or recording, as allowed under FED. R. EVID. 1004.  FED. R. EVID. 1005-1008 further detail what sorts of materials will stand as valid secondary evidence for proving the content of a missing original (as cited in Lorraine v. Markel, p. 84-85):

FED. R. EVID. 1005:

  • Testimony from the author of the original writing
  • Testimony from someone who read the author’s writing, including earlier drafts of it, copies, or an outline used to prepare the final original document.

FED. R. EVID. 1006:

  • Testimonial summaries of voluminous writings, recordings, or photos, provided the witness has had sufficient time to study and accurately summarize the originals

FED. R. EVID. 1007:

  • Testimony to content by a party opponent

FED. R. EVID. 1008 (which is actually a specialized application of Rule 104 (b) related to relevance):

  • A form of conditional relevance–the jury decides any factual disputes as to whether there were ever original writings, recordings, or photographs when there are conflicting versions of duplicates, originals, or secondary evidence that are offered into evidence.

Thus, in general, when an original (or its appropriate duplicate) is unavailable for consideration as evidence, a human witness can attest under oath to the content of an original she or he has worked with as a means of proving the contents of a writing.  Here again, we see the important role of human witnesses in establishing the value of a document–electronic or otherwise–as legal evidence.

Original Writing and Electronic Documents

According to FED. R. EVID. 1003:

An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.  An “original” of a photograph includes the negative or any print therefrom.  If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original” (as cited in Lorraine v. Markel, p. 86–emphasis added).

The “original” status of electronic documents is further specified in FED. R. EVID. 1001 (3), which states:

The “original” of information stored in a computer is the readable display of the information on the computer screen, the hard drive or other source where it is stored, as well as any printout or output that may be read, so long as it accurately reflect the data” (Ibid).

The two rules cited above reflect the court’s recognition of the changing nature of documentation as we shift information media from print formats to electronic presentation.  An advisory committee’s note to Rule 1001 observes that as methods for storing data expand to include electronic media, the court’s understanding of “original writing” has also expanded to recognize that ultimately the important feature of documentation is its usable presentation as words and figures, whether physically printed or not.  Thus, the original understandings of Federal Rules of Evidence for original writing have been expanded to “…include computers, photographic systems, and other modern developments” (Ibid).   By expanding the rules and definitions surrounding original writing to accept the usable presentation of words and figures, this has allowed courts in the U.S. to process new communicative sources that are text-based and admit them as evidence.  For example, in Laughner v. State, a ruling came down that recognized content from internet chat rooms that was copied and pasted into a word processing document as original writing vis-a-vis the Original Writing Rule (Weinstein at section 900.07[1][d][iv]; RICE at 194; Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002) as cited in Lorraine v. Markel, pp. 86-87).  In the particular case cited, an undercover officer was able to prosecute an adult soliciting sex from children by posing as a child in a chat room, then copying and pasting the text content of their chats into a word document.  This material was subsequently printed and entered into evidence after the court interpreted the Federal Rules of Evidence to include any textual representation of information as long as it proves the content of the original document–electronic or physical.

Finally, given that electronic documents tend to be rather ephemeral, the rules permitting secondary evidence to stand in lieu of original writing takes on a particularly strong significance for entering electronic materials into evidence.  Because electronically created documents frequently get deleted, purged by email management software, lost with systems crashes, etc., at least one case has “…recognized that the ‘tenuous and ethereal nature of writing posted in internet chat rooms and message boards means that in all likelihood the exceptions [to the original writing rule that permit secondary evidence] would… [apply]'” (, Inc. v. Spry, 2003 WL 723297 (Cal. App. 2004)(unpublished opinion) as cited in Lorraine v. Markel, pp.91).

To summarize then, Federal Rules of Evidence concerning original writing and secondary evidence that can represent original writing have been expanded to allow for electronic documents, photographs and recordings because the rules granted leeway to the courts to recognize that “original writing” is about the presentation of information as words and figures, rather than the actual medium of presentation (i.e., print vs. electronic presentation of words and figures).  Thus, if an electronic document, photograph or recoding meets the requirements of relevance, authenticity, hearsay, and can be shown to be “original writing” that proves the content of itself, the document is an excellent chance of being successfully admitted into evidence.

Rule 403 and Undue Prejudice

The final hurdle that a piece of electronic evidence may have to clear concerns “…the need to balance its probative value against the potential for unfair prejudice, or other harm, under Rule 403 of the Federal Rules of Evidence” (Lorraine v. Markel, pp. 98).  This rule states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Essentially, this rule says that a piece of evidence of unquestioned relevance to a case can be excluded from presentation because its value as proof is outweighed by the potential problems it could cause.  For example, a computer animation demonstrating the processes and effects of shaken infant syndrome, while a relevant explanation of how shaking a baby can cause permanent developmental damage, could potentially be excluded from presentation in court because the nature of the material could be emotionally confusing or misleading for the jury.  Unless steps are taken to make the jury explicitly aware that it is a demonstration and not a representation of what might have befallen the child under consideration in the case, the evidence could unduly prejudice the jury against the defendant by making members believe that the depicted material is a representation of the defendant’s actions.  However, if provision is made to clearly represent the animation as an explanation in the abstract rather than a concrete representation of events relevant to the case, then the animation can successfully be admitted into evidence (example derived from State v. Sayles, 662 N.W. 2d 1, 11 (Iowa, 2003) as cited in Lorraine v. Markel, pp. 99).

Rule 403 and Electronic Evidence in Human Rights

Though Rule 403 is rarely applied when determining whether documents can stand as evidence in a given case, it can take on special significance in the realm of  human rights.  As the field of human rights documentation takes increasing advantage of electronic and digital means of capturing and documenting abuses, there is the potential that strongly relevant evidence of abuses could be excluded because other information caught on tape, in a photograph, or in an audio recording could be prejudicial to a jury.  Such evidence will likely need to be bolstered with witness testimony to clearly draw the jury’s attention to the relevant material in a recording because recordings rarely catch only one side or aspect of a conflict.  Furthermore, electronic footage can be easily edited to selectively emphasize events that, while real, may not have taken on such prominence in reality.  The result is a set of images or information that unfairly manipulates emotional responses in a jury, thus short-circuiting attempts at “objective” justice.


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