BILL NUMBER:  S4869

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to the authenticating effect of a party's production of
material authored or otherwise created by the party

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure would add a new CPLR 4540-a to eliminate the needless
authentication burden often encountered by litigants who seek to
introduce 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 "(t)he 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. Whittaker 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 implicitly 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 documents 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.").

This measure, which would have no fiscal impact on the State, would
take effect on the first of January next succeeding the date on which
it shall have become law.

 2016 LEGISLATIVE HISTORY :

Senate 7256 (Sen. Bonacic) (committed to Rules)
Assembly 9541 (M. of A. Zebrowski) (PASSED)