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The committee which acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Photographic Copies of Business and Public Records as Evidence Act was as follows:

MASON LADD, University of Iowa Law School, Iowa City, Iowa, Chairman.

OTIS S. ALLEN, Liberty Life Building, Topeka, Kansas.

DONALD E. BRIDGMAN, First National-Soo Building, Minneapolis, Minnesota.

SPENCER A. GARD, Iola, Kansas.

PALMER HUTCHESON, Esperson Building, Houston, Texas.

ROBERT A. LEFLAR, University of Arkansas Law School, Fayetteville, Arkansas.

R. K. LEWIS, Guaranty Building, West Palm Beach, Florida.

MAYNARD E. PIRSIG, University of Minnesota Law School, Minneapolis, Minnesota.

E. BLYTHE STASON, University of Michigan Law School, Ann Arbor, Michigan.

FRED I. SUTTON, Kinston, North Carolina.

R. JASPER SMITH, Woodruff Building, Springfield, Missouri, Chairman, Uniform Civil

Procedure Acts Section.

JOE C. BARRETT, McAdams Trust Building, Jonesboro, Arkansas - (Member of

Executive Committee) Ex-Officio

Copies of all Uniform Acts and other printed matter issued by the Conference may be obtained from

No. 1 NEED

The need for a Uniform Photographic Copies of Business and Public Records as Evidence Act is apparent from the fact that in a dozen or more states some form of such an act was presented to the legislatures of different states last year. These varied in form from those relating to some specific type of records to acts similar to the one which has been drafted by the Commissioners. Several states withheld legislative action because they knew a uniform act was in the process of preparation and would probably be available at the next session of their legislature. Five states previously had adopted acts similar to the one under consideration, each with varying details. Thus it is recognized that legislative sanction for the use of photographic records as evidence is needed.

It is equally apparent that uniform state laws upon this subject would be of a great value to those engaged in business, industry or other activities as so many of them deal in interstate transactions. While their records are held usually at the home office, they may become involved in evidence in many states. If there were a uniform law in the different states, they would be able to comply with some method or system of preserving records through microfilming which would be sure to meet the test of the states adopting such statute.

The microfilm has become the common medium of clearing checks by practically all banks. Insurance companies regularly use the microfilm as a method of preserving their voluminous records. Department stores, wholesale distributors, and certain industries employ the microfilm process as a regular part of their business records. Hospitals frequently use microfilm to permanently preserve case histories and hospital records generally. Educational and other institutions use microfilm as a modern method of compressing voluminous records into a small space with an assured accuracy in the reports. One large manufacturer microfilmed 2,000,000 documents which had required an immense warehouse for storage. In microfilm form these same documents were stored in a vault 10 feet square. The filming process as a method of preserving records not only saves a tremendous amount of storage space but permits the installation of a more efficient index and record system. It also creates safety as a means of preservation of records because the microfilm may be placed in fireproof vaults for safekeeping.

Because of the common practice of microfilming and its growth in modern business practice, an act dealing with this subject is a companion act to the Uniform Business Records as Evidence Act. Both stand upon the same theoretical background. As stated by Dean Wigmore, when such records are made in the regular course of business, a circumstantial guarantee or probability of their reliability arises out of the business practice justifying their use in evidence.

No. 2 THE STATE OF THE LAW IN ABSENCE OF STATUTE

The use of microfilm reproductions and enlargements without statute immediately faces the best evidence rule. This requires the production of the original unless there is a satisfactory explanation for its absence. Courts have varied on the character of the explanation required. Intentional destruction of the original has usually precluded the use of secondary evidence. To use a microfilm reproduction without statute requires in each instance that the attorney make a complete record in the introduction of evidence to meet the demands of the best evidence rule. The microfilm statute would simply make such enlargements of reproductions admissible in evidence as a matter of law if they were made in the regular course of business. There are two leading cases on the microfilm subject.

The federal case of United States v. Manton, 107 Fed 2d 834 (1938), certiorari denied, 309 U.S. 664, 84 L. Ed. 1012, 60 S. Ct. 590 (1940), involves the use of photographic reproductions of checks on microfilm. The court authorizes this use, in saying:

"It was argued that the original checks themselves were the best evidence and their absence should have been accounted for as a prerequisite to the admission of the recordaks. With this contention we cannot agree. These recordaks are made and kept among the records of many banks in the due course of business and are within the words of 28 U.S.C., Sec. 695, 28 USCA, Sec. 695. Their accuracy is not questioned. They represent in the course of a year, perhaps a million transactions. No one at all familiar with bank routine would hesitate to accept them as practically conclusive evidence. As proof of payment they constitute not secondary but primary evidence."

Under similar facts in People v. Wells, 44 N.E. 2d 32 (380 Ill. 347, 1942), the Illinois court reversed the admission of microfilm, declaring that:

"A careful reading of United States v. Manton, supra, reveals that the recordaks were admitted under act of Congress where special authority was given pertaining to writings and records made in regular course of business. We have no such legislative authority in this state which would support holding facsimiles of checks as being the best evidence or primary proof.

"The question then presents itself as to the rules of evidence in this state as to the admissibility of photographic representation of writings of the same size as the original writing and we find such photographic representation should be excluded if the original document is produced, or is obtainable, on the ground that it is secondary evidence."

The Manton case and the Wells case are the only cases precisely upon the microfilm copy. The Wells case felt the need of a statute to accomplish the result of the Manton case. It is this kind of a situation which shows the need of uniform legislation in spite of the fact that a legitimate disagreement might be urged to the Wells case. In advising business in respect to the preservation of records and the methods of keeping them, attorneys ought to be able to predict with clear-cut certainty the admissibility of records preserved through the microfilm process.

No. 3 THE ACTION OF THE COMMISSIONERS

A Uniform Photographic Copies of Business and Public Records as Evidence Act has been under consideration by the Conference on Uniform State Laws for the past five or six years. The task of drafting was commenced a little over two years ago. A preliminary draft of the proposed act was submitted at the Seattle meeting where the problem was extensively discussed followed by instructions of the Conference as to the type of statute desired. At the St. Louis meeting in 1949 the drafting of the foregoing Act was made a principal problem of the Conference, and the Act as drafted and submitted was officially approved by the Conference. It is felt that its final approval and adoption as a uniform act is urgent in view of the substantial demand for such an act for early action by state legislators.

Be it enacted, etc., (Use the proper enacting clause for the state)

SECTION 1. If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile, does not preclude admission of the original.

It is contemplated that when in the regular course of business a microfilm reproduction is made and the original writing is destroyed that the microfilm be preserved and retained with the same care which would have been required of the original. Thus, the fact of existence of the microfilm is a preliminary requirement to the admission of the enlargement. Normally the enlargement would not be made until needed and the microfilm would be held for such purpose. In rare, or at most occasional, cases the court may direct that the microfilm itself be made available for examination. If a false enlargement or false recording was charged, the film should be subject to inspection. In the usual case, however, testimony in court or by deposition as to the existence of the microfilm and identification of the enlargement is sufficient for admissibility.

It is possible that the original microfilm may become lost or destroyed without fault of the party responsible for its retention and that the original writing may have been destroyed after microfilming as authorized by the Act. In that event it is the view of the Commissioners that the principles of the best evidence rule should apply and if a justifiable excuse for the absence of the microfilm is established that any secondary evidence including the microfilm enlargement is admissible.

Illustration, X and Y are in litigation. X sends to its attorney a microfilm enlargement for use in trial. Before trial, a fire occurs and destroys the original microfilm reproduction. Under the best evidence rule apart from the Act the enlargement is admissible.

SECTION 2. This act shall be so interpreted and construed as to effectuate its general purpose of making uniform the law of those states which enact it.

SECTION 3. This act may be cited as the Uniform Photographic Copies of Business and Public Records as Evidence Act.

SECTION 4. All acts or part of acts which are inconsistent with the provisions of this act are hereby repealed.

SECTION 5. This act shall take effect . . . . . . . . . . . . . &n bsp;. .