Evidence Rule 1008 and Summary Judgment; Zartman v. Zartman

The “best evidence rule” is so ingrained in what most litigators do that we do not need to worry about it on a regular basis. This is particularly true in the era of digital storage, when many documents are readily available from someone’s hard drive. But this is not always the case, and the series of provisions starting at Evidence Rule 1001 cover problems when an entire document is not available. But how do those rules interact with summary judgment practice? This case offers a guide.

William Jr. and Marilyn Zartman were married and had three children: Brenda, Paul, and William III. William Jr. and Marilyn owned a farm that William Jr. worked with his father. William Jr. and Marilyn established revocable trusts. By 2003, each trust held one-quarter of the farm, and the remaining half of the farm had been transferred to William III. Subsequently, William Jr.’s trust also transferred its one-quarter interest to William III.

Marilyn and William Jr. died. Afterwards, William III, as a trustee of Marilyn’s trust, transferred to himself the remaining one-quarter of the farm held by her trust—so that William III then owned all 303 acres of the farm, and his siblings owned none. His siblings did not like this, and sued William III, seeking to set aside William’s conveyance of Marilyn’s interest in the farm to himself.

Problematically, none of the parties had a complete copy of either of Marilyn’s trust documents, not the original or the First Amendment—they only had the first and last pages. The siblings moved for summary judgment, arguing that any transfer under the trust needed the signatures of both trustees (Brenda and William III), while William III argued that his signature alone was sufficient. The trial court denied their motion on grounds that the content of Marilyn’s trust documents was required to be determined by a jury. The jury returned a verdict for William III.

On appeal, the Court focused on the question of whether the trial court erred when denying the siblings’ motion for summary judgment. Evidence Rule 1004 provides that in the absence of an original writing, other evidence of the content of a writing is admissible if all originals are lost or destroyed, and the loss or destruction was not caused by the proponent acting in bad faith. Proof of this content can be through testimony (per Rule 1007). And it was the application of Rule 1008 that proved tricky in this case. That Rule provides

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines in accordance with Rule 104(b) any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

The trial court interpreted Rule 1008 to demand a jury trial to ascertain the content of a lost writing. But the Court of Appeals found that it was “illogical” for Rule 1008 to override summary judgment procedure.

Rather, the more pragmatic reading of the rule is that it requires evidentiary disputes about the content of a lost writing be determined by a jury only during a jury trial. Indeed, the rule explicitly states that the court determines whether the prerequisites of Rule 1004 have been met for the use of secondary evidence, “[b]ut in a jury trial,” the jury determines any issue about the content of the document.

Thus, the trial court should have looked to the evidence presented to determine whether there was a genuine issue of fact to try to the jury. The Court reversed and remanded to the trial court for reconsideration of its denial of summary judgment.

In a footnote, the Court added one additional note concerning summary judgment procedure. When denying summary judgment, the trial court noted some discrepancies between Paul’s affidavit and his deposition.

However, Paul’s deposition, though filed with the court during the proceedings, was not designated by either party. The posture of this case is a summary judgment; accordingly, the trial court, and this Court on appeal, may consider only the evidence specifically designated to the trial court by the parties. Furthermore, designating evidentiary materials in their entirety fails to meet the specificity required by Trial Rule 56(C).

Thus, the fact that that a deposition is in the record is not a basis for a trial court to search through it to find a genuine issue of material fact that has not been pointed out by the parties.


  1. Questions over the content of a lost writing may be resolved via summary judgment.
  2. A deposition or other exhibit that is in the record may not be considered for summary judgment purposes unless portions of that deposition or exhibit have been specifically designated by a party as required by Trial Rule 56(C).

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