Rule 1008. Functions of Judge and Fact Finder

Preliminary Findings by the Court. Before secondary evidence of the contents of a writing or record may be admitted, the proponent must offer evidence sufficient to warrant a finding that an original once existed. If the evidence warrants such a finding, the judge must assume its existence and then determine if the original is unavailable, not through the serious fault of the proponent, and if reasonable search has been made for it. If the judge makes these findings in favor of the proponent, the judge must allow secondary evidence to establish the contents of the original writing or record. Once the secondary evidence is admitted, it is for the trier of fact to determine the weight, if any, to give the secondary evidence.

Questions for the Fact Finder. Notwithstanding Rule 1008(1), where the admitted evidence raises a question whether an asserted writing or record ever existed, whether another item produced in the proceeding is the original, or whether other evidence of content correctly reflects the content, that question is for the fact finder and shall be determined as any other issue of fact.

Standard. The court’s findings under Rule 1008(1) are made under Rule 104(1) and by a preponderance of the evidence. The court is not bound by the rules of evidence, except those of privilege, in making them.

Reasonable Search. What constitutes a reasonable search depends on the nature of the record. For an electronically stored record, a reasonable search includes a search of the account, channel, server, or system in which the record resided, so far as the proponent has access to it; a request to a person who has such access; and, where the record is held by a person who is not a party, a subpoena under Rid. R. Civ. P. 32 or Rid. R. Crim. P. 17. A proponent is not required to undertake forensic recovery, or to obtain a record which the operator of a platform holds and does not release, unless the court so orders.

Record of the Determination. The court shall state upon the record the findings it makes under Rule 1008(1) and the evidence upon which they rest.

Instruction. In a trial to a jury impanelled under Rid. R. Crim. P. 24.1 or Rid. R. Civ. P. 27.1, the court shall, on request, instruct the jury upon the questions committed to it by Rule 1008(2). In a bench trial the court shall determine those questions as the fact finder and shall state its determination in its findings.