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Rule 44 – Proof of Official Record; Foreign Law

May 14, 2021 | Civil Procedure, South Carolina

(a) Authentication.

(1) Domestic. An official record 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, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the 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. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept and 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 (A) of the attesting person, or (B) of any foreign official whose certificate 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, (A) admit an attested copy without final certification or (B) 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 of official records or of entry or lack of entry therein by any other method authorized by law.
(d) Foreign Law. A party who intends to raise an issue concerning the law of a foreign jurisdiction shall give notice in his pleadings or by other reasonable written notice or applicable motion. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the law of evidence. The court’s determination shall be treated as a ruling on a question of law.

S.c. R. Civ. P. 44

This Rule 44 is substantially the Federal Rule. It conforms to present practice and Code §§ 19-5-10, 19-5-20, 19-5-40 and 19-5-220. Rule 44(d) is new. It conforms to present practice but is a more precise statement. Note to 1986 Amendment: This amendment [to Rule 44(d) ] permits the issue of foreign law to be raised by any written notice rather than only in the pleadings or a motion. It is similar to Federal Rule 44.1 and supplements the Uniform Judicial Notice of Foreign Law Act, S.C. Code § 19-3-110 et seq.