The Israeli Ministry of Justice is (Once Again) Revisiting the Best Evidence Rule

The Israeli Ministry of Justice has published a request for comments on the possibility of amending the Israeli Evidence Ordinance with respect to the validity of the “Best Evidence Rule”. This longstanding rule of evidence law applies when a litigant seeks to admit a document into evidence, for the purpose of proving its content, rather than its existence. The rule requires that the original document be admitted into evidence, rather than a copy. The relevance of this rule has been questioned in recent decades, given developments in information technology, characterized by a shift to paperless transactions, electronic contracts and scanned documents.
In 2006, the Israeli government proposed a Bill to Amend the Evidence Ordinance (Amendment 15) (Original and Copy as Evidence), 5766-2006, whose purpose was to equate the evidentiary status of a document’s copy to its original. The bill would have finally abolished the “Best Evidence Rule” that precluded the admission of scanned copies and photocopies into evidence. The bill proposed that “where a document is admissible, its content can be proven via the original document or a copy thereof”, and “a copy for this purpose is a product resulting from a technological process that creates products whose content is identical to the original, including by way of photocopying, printing, computer scanning or mechanical, chemical, electronic or optical reproduction, and in any event regardless of the resulting dimensions of the copy in relation to the original.” Thereafter, in 2010, the Israeli Law, Information and Technology Authority (ILITA) at the Ministry of Justice drafted an opinion regarding the “Abolishment of the Best Evidence Rule and Electronic Archiving”, whose purpose was to solicit comments from professional stakeholders in the field, in advance of a draft bill proposal.
No real progress was made on these proposals. Now, the Ministry of Justice’s internal team appointed to oversee this topic is inviting the public to submit any pertinent information, comments or proposals, regarding: (1) the business, legal-procedural and other implications of maintaining the Best Evidence Rule; (2) the rule’s relevance in the digital age of scanning, digital imaging and computerized copies; (3) the possible implications of abolishing the rule as a rule of admissibility while retaining it with respect to determining the reliability of evidence. Responses are to be submitted in writing, by October 6, 2015. The team is headed by Dr. Haim Wismonsky, chief of legislation, law and technology at the Israeli State’s Attorney Office. Source: The Israeli Ministry of Justice.