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with the California Secretary of State has attached to it a
declaration by Garrett L. Cecchini, president of Niesar Pahl,
which recites that petitioner is a shareholder.1 On a schedule
1 At trial, petitioners objected to respondent’s Exhibit O,
which consists of the Certificate of Amendment and two
attachments, the declaration of Garrett L. Cecchini and the
guarantee signed by petitioner (the guarantee). We overruled
that objection, but petitioners renew their objection on brief.
Because of the importance petitioners attach to their objection,
we shall elaborate on our reasons for overruling petitioners’
objection. Petitioners’ objection is based “on the grounds of
Best Evidence”. Petitioners claim that, at trial, respondent,
promised to provide an original or certified copy of Exhibit O
and failed to do so. We have examined the transcript of the
trial and, although we did hold the record open so that
respondent could submit certain documents, we cannot conclude
that respondent promised to submit an original or certified copy
of Exhibit O. In any event, we do not believe that an original
or certified copy is necessary to satisfy the Federal Rules of
Evidence. We need not be concerned with Fed. R. Evid. 1005,
which deals with public records. Respondent is not attempting to
establish the contents of the Certificate of Amendment as a
public record, but rather she is trying to prove the contents of
the Certificate of Amendment and attached documents regardless of
whether or not they are public records. The rationale behind
Fed. R. Evid. 1005 is inapplicable, and the rule does not apply.
United States v. Childs, 5 F.3d 1328, 1335 (9th Cir. 1993).
Exhibit O was proffered to prove that petitioner was a
shareholder of Niesar Pahl. Fed. R. Evid. 1003 provides that “A
duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original.” At trial, petitioner as
much as alleged that his signature had been forged to the
guarantee. Nevertheless, Gerald V. Niesar (Niesar), secretary of
Niesar Pahl testified that he prepared the guarantee, watched
petitioner sign it, and recognized his signature. Fed. R. Evid.
901(b)(1) and (2) provides that a document can be authenticated
by the testimony of a witness with knowledge and nonexpert
testimony is sufficient as to the genuiness of handwriting.
Although a coworker may testify as to the handwriting of an
employee if he had the opportunity to observe it, United States
v. Tipton, 964 F.2d 650 (7th Cir. 1992), we need not concern
ourselves with Niesar’s familiarity with petitioner’s signature,
(continued...)
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