The Best Evidence Rule, embodied in FRE 1002, is often misunderstood. On its express terms, the rule requires “the original writing, recording, or photograph” to be introduced when offered to “prove the content of a writing, recording, or photograph,” unless some other exception applies. Notwithstanding the brevity of the rule, it remains subject to misapplication, as a recent Sixth Circuit case demonstrates, O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (6th Cir. Aug. 5, 2009) (No. 07-4553, 08-3184)
In the case, former McDonald’s employees from two franchises claimed they were not paid wages for which they were entitled under the Fair Labor Standards Act and state law. One small part of an extensive opinion dealt with application of the Best Evidence Rule. On summary judgment, the district court struck portions of an affidavit concerning the work schedule under the Best Evidence Rule. The employee’s affidavit noted his routine in reporting to work and that a manager would not clock him in until later. The district court considered the employee’s prior deposition testimony that he worked as reflected in the restaurant schedule. The district court disregarded the affidavit under the Best Evidence Rule and disagreed with the plaintiffs that the affidavit was not offered to prove the content of the schedules.
The Sixth Circuit concluded the district court misapplied the Best Evidence Rule:
“[T]hese averments themselves were not offered to ‘prove the content of a writing.’ By its terms, that is the only time that Rule 1002 applies. The district court concluded that the averments in the affidavit were deficient because they were not ‘the best evidence of when Plaintiff Prater reported to work on any given day.’ The best evidence to prove that contention may be the schedules, but requiring the best evidence available (here, apparently, the schedules) to prove something besides the ‘content’ of the schedules is not what the Best Evidence Rule demands. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994) (“Rule 1002 requires production of an original document only when the proponent of the evidence seeks to prove the content of the writing. It does not, however, require production of a document simply because the document contains facts that are also testified to by a witness.”) (citations and internal quotation marks omitted); see also Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999) (quoting Allstate for the proposition that “there is no general rule that proof of a fact will be excluded unless its proponent furnishes the best evidence in his power” and reasoning that a plaintiff “can prove he filed a loan application simply through his own trial testimony” and does not need to furnish the application).”O'Brien, 575 F.3d at 599.
Normally there may be best or preferred evidence to prove a matter. If some other preferred evidence is not produced, typically a party will argue the weight of the evidence. However, the Best Evidence Rule only applies for the limited purpose of proving the contents of a “writing, recording, or photograph.” Under those circumstances, the rule requires production of the original.