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All Jurisprudence based

0 tracked cards Remedial Law, Legal and Judicial Ethics, with Practical Exercises

In a civil action for unpaid licensing fees for the use of a photograph, the plaintiff offers (a) a photocopy of a License Agreement signed by the defendant's CEO, and (b) the testimony of the plaintiff's Licensing Manager who witnessed the signing and can identify the copy as a true and correct rendition of the signed document. The defendant objects to the photocopy as inadmissible secondary evidence and to the Licensing Manager’s testimony as hearsay. (a) Distinguish 'proof' and 'evidence' and explain what the plaintiff must show for there to be proof of the license. (b) Apply the Best Evidence Rule to the photocopy: when is a photocopy admissible, and what authentication or circumstances would cure its admissibility? (c) Assuming the photocopy is admissible or the original is produced, does the combined evidence amount to proof of the license by preponderance? What additional evidence, if any, would help the plaintiff meet the standard?

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If the photocopy is authenticated by the custodian and the witness testifies to the terms, the photocopy is admissible and the witness's testimony is not hearsay because it relates to the terms as stated in the document. Judicial notice can substitute for the original license; the court may take judicial notice of the existence of the license. To prove the license, plaintiff must show (i) a valid licensing instrument existed; (ii) the photocopy is a faithful reproduction of the original; a photocopy may be admitted as secondary evidence if properly authenticated or if the original is produced; assuming admissibility, the combined evidence can prove the license by preponderance; additional evidence such as the original license or corroborating communications would help. Under the Best Evidence Rule, a photocopy of a private contract is never admissible unless the original is produced, so the photocopy cannot prove the license.

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