Motion to exclude computer-generated evidence—Best evidence rule

Motion to exclude computer-generated evidence—Best evidence rule

The best evidence rule requires that the party offering documentary evidence produce the original document. It can be asserted therefore, that a printout, of data contained in the computer, is not the original of that evidence.FN6 This argument, however, is seldom successful.

The evidence codes of many states and the Federal Rules of EvidenceFN7 define "original" to include a printout made of the contents of a computer file. In addition, most evidence codes allow the argument that even if data in the computer were considered the "original" it is "unavailable" and, therefore, the printout is the best evidence of the contents of the computer that is available. The federal rules of evidence provide that the contents of voluminous writings, recordings, or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, must be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may also order that they be produced in court.FN8

An alternative attack on computer records based on the best evidence rule is the argument that the computer record is merely a summary of a number of individual records that constituted the input for the computer. A bank computer record, for example, is a summary of a number of individual transaction slips.

There are two common counter-argument to this argument. Where the original documents are no longer available, having been destroyed, they cannot be produced. Where the terms of the best evidence rule have been met and where the original documents are available, the proponent of the computer evidence can argue that the "voluminous writings" exception to the best evidence rule applies.