## Facts

- Joseph French worked for United Parcel Service (UPS) and had life-insurance coverage through his employment.
- When UPS employees were hired at the time French was, they completed a paper beneficiary-designation card for the life-insurance plan.
- After an employee completed the card, UPS personnel entered the beneficiary information into a UPS computer system, and the paper card was stored with the employee’s personnel records.
- French died survived by his wife, Tonya French, and his mother, Patricia French.
- Tonya and Patricia each claimed entitlement to the life-insurance proceeds as French’s designated beneficiary.
- Mary Arrington, a UPS administrative assistant, accessed French’s electronic personnel file and saw that Patricia was listed as the life-insurance beneficiary.
- Arrington later retrieved French’s hardcopy personnel file from storage, but the beneficiary-designation card was missing.
- Soon after French’s death, UPS stopped using the prior computer program, and the electronic file reflecting French’s beneficiary information was lost or destroyed.
- Patricia sought to call Arrington to testify about what Arrington saw in the electronic file before it was lost.
- Tonya objected, arguing that Arrington’s testimony violated the best-evidence rule because it attempted to prove the contents of a writing without producing an original or duplicate.

## Issues

1. When the original beneficiary-designation card and the electronic beneficiary record are unavailable, does the best-evidence rule bar testimony from a witness who previously viewed the electronic record?
2. Under Federal Rule of Evidence 1004, may a party prove the contents of a lost or destroyed electronic record through witness testimony when there is no showing the proponent caused the loss in bad faith?

## Decision

- The court admitted Arrington’s testimony describing what the UPS electronic record showed about French’s designated beneficiary.
- The court found the relevant originals (the stored paper card and the computer-stored record) were missing and that the electronic file had been lost or destroyed when UPS discontinued the older computer system.
- The court concluded there was no showing that Patricia, as the proponent of the testimony, lost or destroyed the originals in bad faith.
- Because the prerequisites for Federal Rule of Evidence 1004 were satisfied, the court overruled the best-evidence objection and allowed Arrington’s testimony as secondary evidence of the record’s contents.

## Legal Principles

- Federal Rule of Evidence 1002 generally requires an original writing, recording, or photograph to prove its contents.
- Electronically stored information may constitute a “writing” for purposes of the best-evidence rule; a readable output can qualify as an “original” under Rule 1001.
- Under Federal Rule of Evidence 1004(a), an original is not required and “other evidence of the content” is admissible if all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
- If Rule 1004 applies, testimony from a witness with personal knowledge of the contents of the missing record may be admitted to prove what the record stated.
- After the Rule 1004 foundation is established, objections aimed at the witness’s recollection typically go to weight rather than admissibility.

## Conclusion

In re French held that the best-evidence rule did not bar a UPS employee from testifying about the beneficiary listed in a missing electronic personnel record when both the electronic record and the related paper beneficiary card were unavailable and there was no showing the proponent caused the loss in bad faith; under Federal Rule of Evidence 1004, the testimony was admissible as secondary evidence of the record’s contents.


In re French, No. 98-0681-S, 1999 U.S. Dist. Lexis 16933 (1999)