Zartman v. Zartman, No. 18A-PL-1071, __ N.E.3d __ (Ind. Ct. App., June 18, 2019).

Shepard, S.J.

The common law “best evidence rule” has been formalized through the modern Rules of Evidence employed by both state and federal courts. The series of provisions starting at Rule 1001 cover problems like the one in this case, which turns on the language used in a trust document not presently possessed by either party.

After reviewing such caselaw as exists and a number of respected treatises, we conclude that the trial court wrongly applied Evidence Rule 1008 in the course of a summary judgment proceeding. We remand with directions that the court reconsider that ruling.


Much of the difficulty in this case has arisen because none of the parties has a complete copy of either Marilyn’s original trust document or the amendment to her trust. In seeking to set aside William III’s conveyance of that trust’s one-quarter interest to himself, Paul and Brenda have argued the conveyance was invalid because the deed conveying the property should have been executed by both co-trustees (William III and Brenda) but instead was executed solely by William III. To sustain this argument, Paul and Brenda need to establish the terms of Marilyn’s trust and amendment. Because the parties have only the first and last pages of Marilyn’s original trust document, they turned to the series of rules about “best evidence” to prove the content of the trust and the amendment.

Indiana Evidence Rule 1002 provides that an original writing is required in order to prove its content unless the rules of evidence or a statute provide otherwise. In the absence of an original, Rule 1004 states that 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. Evidence Rule 1007 allows proof of the content of a writing by the testimony, deposition, or written statement of the party against whom the evidence is offered. Finally, Rule 1008 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. {Footnote omitted.]


However, in denying Paul and Brenda’s motion, the court interpreted Rule 1008 as demanding that disputes about the content of a lost writing be decided by a jury…

In a summary judgment context, it would be illogical to read Rule 1008 as requiring a trial judge to disregard completely the undisputed designated evidence as to the content of a lost writing. 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. See 31 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 8064 (2000) (“Where the judge is the trier of fact, the distinctions made by Rule 1008 have little practical import.”); 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 1004.10 [2] (Mark S. Brodin ed., 2d ed. 1997) (“In a nonjury case, the preliminary and final questions often merge.”). See also Fox v. Peck Iron & Metal Co., 25 B.R. 674, 680 (Bankr. S.D. Cal. 1982) (stating that when case is tried before court, sitting without a jury, court must make both preliminary and final factual determinations). 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. Evid. R. 1008.

A leading evidence treatise stresses that the question of whether a party has offered sufficient evidence to prove the contents of a lost writing is a matter for the trier of fact to decide. See WEINSTEIN’S FEDERAL EVIDENCE, § 1004.02[1]. Application of the Rule turns on who is the trier of fact in the particular context in which the issue arises—when the issue arises in a jury trial, it is decided by the jury, but when the issue arises in a context other than a jury trial, the court decides the issue. Thus, where, as here, the content of a document is at issue not in the midst of a jury trial but in the context of a motion for summary judgment, it is for the court to decide based on the parties’ designated evidence. The trial judge “finds” which facts are not in genuine dispute and which facts are, then uses the undisputed facts to rule on the motion for summary judgment. We note that this reading of Rule 1008 also comports with the dictates of Trial Rule 56.



Here, the trial court misconstrued its role in determining the contents of Marilyn’s trust for purposes of deciding summary judgment, and it erred by taking into account evidence that had not been designated (i.e., a deposition taken of Paul that was in the court’s file). We remand so that the trial court can reconsider its ruling on summary judgment in accordance with these directions and sustain the present judgment, or not, accordingly.

Reversed and remanded for reconsideration.

Riley, J., and Kirsch, J., concur.


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