§ 30.05 EXCEPTION — DUPLICATES: FRE 1003 ("XEROX"™ RULE)

• Jurisdiction: North Carolina

§ 30.05. EXCEPTION — DUPLICATES: FRE 1003 ("XEROX"™ RULE)

Rule 1003, sometimes known as the "Xerox"™ rule, makes duplicates generally admissible. This represents a major change from the common law, under which the offeror had the burden of establishing an adequate excuse for failing to produce the original before secondary evidence was admissible. Rule 1003 reverses this burden with respect to duplicates as defined in Rule 1001(e).

In sum, duplicates are typically as admissible as originals. If the principal concern of the best evidence rule is the reliability of secondary evidence, the accuracy of modern technology should be taken into account.⁴¹ Thus, duplicates are admissible unless (1) a genuine question of the authenticity of the original is raised, or (2) fairness requires production of the original. These exceptions are discussed below.

[A] "Duplicates" Defined

Not all copies qualify as "duplicates." Rule 1001(e) defines a duplicate as a counterpart produced by a process that "accurately reproduces the original." Thus, handwritten copies are not duplicates.⁴² Recall, however, if a counterpart, no matter how produced, is intended by the person executing or issuing it to have the same effect as the original, the counterpart is an original under Rule 1001(d). A counterpart, therefore, may be either an original or a duplicate, depending on the intent of the person executing or issuing it.⁴³

[B] Exceptions to Duplicate Rule

Authenticity questioned. Duplicates are not admissible if there is a genuine question about the authenticity of the original — for example, when it is "barely legible"⁴⁴ or otherwise suspect.⁴⁵

Unfairness. Fairness is jeopardized "when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party."⁴⁶ The federal note cites two cases. In one case, the Fourth Circuit held it error to admit an incomplete photocopy of the check in a prosecution for theft of a Social Security check.⁴⁷ In the other, the Second Circuit ruled it proper to exclude photocopies of portions of business records in a civil fraud case when the originals were in Japan and the defendant had no opportunity to determine whether omitted portions might be relevant.⁴⁸ Exclusion of a photocopy is also proper where "the most critical part of the original . . . is not completely reproduced in the 'duplicate.' "⁴⁹

Procedural issues. A party seeking to...