Intro to the Federal Rules of Evidence - 32

5. Priority

a. Originals
FRE 1001 defines an original as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. Thus, the rule employs an intent test to determine whether a writing is an original.

Example: D writes a handwritten letter to X possibly defaming P. D then hands the letter to his secretary, who retypes it and sends the types version. At P’s libel suit against D, it is the derivative types version, not the handwritten version, which is the original that must be produced if available.

b. Types of secondary evidence in exceptions
i) Duplicates
They should be exactly w/in the statutory meaning – an exact copy of an original (FRE 1001(4) & FRE 1003). Any copies produced manually, whether by typing or handwriting, are not duplicates.
Admissible even though the original is available, unless (1) a dispute as to the authenticity of the original, or (2) unfair in the circumstances to admit the duplicate instead.
ii) Certified copies of public records (FRE 1005)
Purpose: to prevent the loss or absence of public records due to litigation.
iii) Voluminous writings – summaries (FRE 1006)
iv) Other exceptions (FRE 1004) – the offering party’s choice.
Satisfactory foundations are needed: (1) originals lost or destroyed; (2) original not obtainable; (3) original in possession of opponent; (4) collateral matters.