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Massachusetts Civil Procedure Rule 44: Proof of Official Records

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a) Authentication.

(1) Domestic. An official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy. If the record is kept in any other state, district, commonwealth, territory or insular possession of the United States, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, any such copy shall be accompanied by a certificate that such custodial officer has the custody. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification, or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.

(c) Other Proof. This rule does not prevent the proof, by any other method authorized by law, of the existence of, or the lack of, an official record, or of entry, or lack of entry therein.

Effective July 1, 1974.

Reporter's Notes (1973) Rule 44, like Federal Rule 44, deals only with the problems of (1) authenticating an official record, and (2) establishing the lack of such record. Rule 44 does not cover the authentication of non-official records (as, e.g., hospital records under G.L. c. 233, § 79). Neither does it regulate the extent to which the contents of the record, once authenticated, may be admissible (as, e.g., the question of "liability" evidence in hospital records, G.L. c. 233, § 79, or death records, G.L. c. 46, § 19).

Rule 44 largely follows Federal Rule 44, with one significant exception. Federal Rule 44(a)(1) requires that any official record be doubly-certified: (1) The officer having custody of the record must certify its validity; (2) The judge or officer must certify the status of the custodial officer. Rule 44(a)(1) eliminates this double certification with respect to records kept within the Commonwealth. In other respects, Rule 44 accords with prior Massachusetts practice. See G.L. c. 233, §§ 75-79G.

Rule 44(a)(2) deals with foreign records. It does not alter prior Massachusetts practice. G.L. c. 233, § 69, G.L. c. 223A, § 13. Rule 44(b) allows a lack of record to be proved in the same manner as proof of the existence of an official record. Rule 44(c) modifies Federal Rule 44(c) slightly to make clear that proof of either the existence of a record, or lack of such record, or entries therein may be proved by methods other than those set out in sections (a) and (b). Thus the ease law in Massachusetts permitting proof of the absence of a record or entry therein by parol evidence remains unaffected. See Bristol County Savings Bank v. Keary, 128 Mass. 298, 303 (1880); Blair's Foodland, Inc. v. Shuman's Foodland, Inc., 311 Mass. 172, 175-176 (1942).