NEW RULES - EVIDENCE: AUTHENTICITY OF DOCUMENTS

Signed into law August 24, 2018: The civil practice law and rules is amended by adding a new rule 4540-a to read as follows:

Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.

Material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.

According to the text of the bill in Assembly:

"This measure would add a new CPLR 4540-a to eliminate the needless
authentication burden often encountered by litigants who seek to intro-
duce into evidence documents or other items authored or otherwise
created by an adverse party who produced those materials in the course
of pretrial disclosure.

It is fundamental, of course, that the genuineness of a document or
other physical object must be established as a prerequisite to its
admissibility when the relevance of the item depends upon its source or
origin. See Barker & Alexander, Evidence in New York State and Federal
Courts § 9:1 (2d ed. 2011). But evidence of such authenticity should not
be required if the party who purportedly authored or otherwise created
the documents at issue has already admitted their authenticity. And if a
party has responded to a pretrial litigation demand for its documents by
producing those documents, the party has indeed implicitly acknowledged
their authenticity. Thus, in such cases, the presentation of evidence of
authenticity is a waste of the court's time and an unnecessary burden on
the proponent of the evidence. The producing party's simple objection to
admissibility for "lack of authentication" in such cases should be
summarily overruled.  But often it is not, thus warranting remedial
legislation. This measure, then, would codify and expand upon caselaw
that has been overlooked by many New York courts, practitioners, and
commentators.

The idea that a party's production of his or her own papers serves to
authenticate them is a specific application of the general rule that the
authenticity of a document may be established by circumstantial
evidence. See People v. Myers, 87 A.D.3d 826, 828 (4th Dep't 2011),
leave to appeal denied, 17 N.Y.3d 954 (2011). The New York Court of
Appeals recognized the probative value of a party's production of its
own documents in Driscoll v.  Troy Housing Auth., 6 N.Y.2d 513 (1959),
where the issue was the authenticity of an unsigned, undated "roster
card" describing the status of a civil service employee. The card was
produced by the civil service commission from its files, where it had
been kept for eight years. The Court held that "its authenticity must be
presumed, or we have presumed wrongdoing rather than honesty on the part
of the public official." Id. at 519. The Court's ruling was bolstered by
the presumption of regularity that attaches to the acts and records of
public agencies, but the authentication-by-production doctrine was also
recognized with respect to private documents in Ruegg v.  Fairfield
Securities Corp., 308 N.Y. 313, 320 (1955). There, the Court observed
that the authenticity of a copy of a letter "produced from defendant's
own files" was "unquestioned."

Several recent federal cases have likewise held that a party can satisfy
the requirement of authentication based on the opposing party's
production of its own papers during discovery proceedings. For example,
the court in Bieda v. JCPenney Communications, Inc., 1995 WL 437689 n.2
(S.D.N.Y. 1995), held that " the mere fact that Defendants here
produced most of the documents in question is at least circumstantial,
if not conclusive, evidence of authenticity." See also Denison v. Swaco
Geolograph Co., 941 F.2d 1416, 1423 (10th Cir.  1991); Snyder v. Whit-
taker Corp., 839 F.2d 1085, 1089 (5th Cir.  1988); FTC v. Hughes, 710
F.Supp. 1520, 1522-23 (N.D.Tex. 1989).

The act-of-production doctrine in Fifth Amendment jurisprudence provides
further support for the principle that a party who produces papers in
response to a litigation demand for papers written by him or her implic-
itly authenticates those papers. For example, the Court of Appeals noted
in People v. Defore that "a  criminal defendant is protected  by the
Fifth Amendment from producing his documents in response to a subpoena
duces tecum, for his production of them in court would be his voucher of
their genuineness." 242 N.Y. 13, 27 (1926), cert. denied, 270 U.S. 657
(1926) (internal quotation marks and citation omitted) (italics added).
See also U.S. v. Hubbell, 530 U.S. 27, 36 (2000) ("By producing docu-
ments in compliance with a subpoena, the witness would admit that the
papers existed, were in his possession or control, and were authentic.")
(internal quotation marks omitted); Fisher v. United States, 425 U.S.
391, ' 412 n.12 (1976) (collecting cases).

In furtherance of the foregoing principles, the proposed new CPLR 4540-a
creates a rebuttable presumption that accomplishes two goals.  First,
when the item at issue is one that has already been produced by a party
in the course of pretrial disclosure, and such item purportedly was
authored or created by that party, the opposing party is thereby
relieved of the need, ab initio, to come forward with evidence of its
authenticity. Second, the rebuttable nature of the presumption protects
the ability of the producing party, if he or she has actual evidence of
forgery, fraud, or some other defect in authenticity, to introduce such
evidence and prove, by a preponderance, that the item is not authentic.
A mere naked "objection" based on lack of authenticity, however, will
not suffice.  Shifting the burden of proof to the producing party makes
sense because that party is most likely to have better access to the
relevant evidence on the issue of forgery or fraud. Furthermore, the
presumption recognized by the statute applies only to the issue of
authenticity or genuineness of the item. A party is free to assert any
and all other objections that might be pertinent in the case, such as
lack of relevance or violation of the best evidence rule.

We note that adoption of the proposed new CPLR 4540-a would not preclude
establishing authenticity by any other statutory or common law means.
See CPLR 4543 ("Nothing in this article prevents the proof of a fact or
a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.")."