Whether I’m representing a foreign manufacturer in a major distribution deal in China, an aggrieved investor against a Swiss bank or a defrauded oligarch against a former Soviet republic, the work is never boring.
International litigation in particular presents its own interesting host of issues, especially when it involves evidence gathered in foreign countries.
I mention this because last week the opposing attorney in a hotly contested case I’m handling sought to enter into evidence foreign records he obtained from a large Asian country.
As he struggled with the court’s questions, it was clear he did not know the technical requirements of authenticating the records so that they would be admissible in court.
This is far from an isolated scenario–anyone who has picked up a newspaper in recent weeks is familiar with the Apple-Samsung Litigation. The case has massive legal implications for the $219 billion global smart phone market.
Significantly, Apple’s case hinges largely on foreign documents: many produced by Samsung during discovery, and others obtained from official government records in South Korea, where Samsung is based.
Thus, the importance of properly authenticating foreign records cannot be understated.
For purposes of this post, I will focus on federal courts. While the laws of most states are modeled on the federal rules, be sure to check the appropriate rules and procedures in your state.
While it is rare to have an original foreign record offered into evidence, it is far more common to have copies of the official records. In such a case, 902(4) must be read together with 902(3).
Under these rules, a foreign public record, or an officially filed or recorded document, may be proved with a copy accompanied by: (a) a certificate made by “the custodian or other person authorized to make the certification” (FRE 902(4)); and (b) a “final certification” (FRE 902(3)) made by a diplomatic or consular officer.
The diplomatic or consular officer attests to the “genuineness of the signature and official position” of the first certifier. There is a chain of certificates, with a final certificate by the diplomatic consular or consular official attesting to the signature and authority of those in the chain.
The first certificate should bear an actual signature, since that is the signature of the signer made or supervised the copying of the original document. The “custodian” executes this certificate, but in Colombia it’s possible the custodian may not be authorized to certify copies. FRE 902(4) is satisfied by a certificate from any “other person authorized to make the certification.
The first certificate should indicate the official position of its maker and the name and location of his office and authority. It should state that the copy is a true and correct copy of a document prepared by a document filed or recorded with or a named public entity or authority. Subsequent certificates should state the official position and the names and locations of their certified authorities.
They should state that the signature on the next certificate in the chain is genuine and that the signer of such prior certificate had authority to certify the documents or was in a position to know whether such documents are genuine. The requirements for the final certification are the same as those imposed by FRE 902(3) for final certification of the originals of foreign records.
As for 902(12), the Court will need to determine whether records fall within the meaning of “regularly conducted activity.” The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) is self-authenticating if accompanied by a written declaration by its custodian or other qualified person certifying that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) was kept in the course of the regularly conducted activity; and (c) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under FRE 902(12) must provide written notice of that intention to adversaries, and must make the record and declaration available sufficiently in advance to provide a fair opportunity to challenge them. He did not indicate that he was making the declaration available.
Significantly, once the documents are authenticated, they would still be challenged for veracity and accuracy.