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When the Signed Contract Cannot be Located

Posted by James Juo | Oct 18, 2023 | 0 Comments

In a contract dispute, the signed contract is critical evidence. When the original cannot be located, then a duplicate may be admissible under Federal Rule of Evidence 1003. If no signed copy can be located, then a prior draft could be admissible as “other evidence of the content” of the original under Rule 1004. But if there is a dispute about what were the final terms of the signed contract, that may create a genuine dispute of material fact that may require a trial on the merits.

“All the Way Up” Song Credit Dispute

Eric A. Elliott, who performs as Fly Havana, claims to have co-written the 2016 song “All the Way Up” with Joseph Cartagena, who is known as the rapper Fat Joe.

In a March 2016 meeting at an IHOP in Miami Beach, Cartagena gave Elliott a $5,000 check and “put a piece of paper in front of” Elliott for him to sign, which he did.

Elliott alleged that the piece of paper “seemed to state that [he] was going to be compensated and credited as a writer” and that Cartagena told him that the document “essentially memorialized [Cartagena's] representations about getting ‘some bread' up front, more later, and working together.” Cartagena left that meeting with the signed document and did not provide Elliott with a copy.

The signed document apparently has since been lost and could not be located. But Cartagena did produce a draft version of the “piece of paper,” claiming it was identical in substance to the version that Elliott signed. The Draft purportedly assigns all of Elliott's rights in the song to an entity called R4 So Valid, LLC.

Cartagena's former attorney, Erica Moreira, submitted a declaration saying that she had prepared the Draft for Cartagena to present to Elliott. And Cartagena submitted a declaration stating: “I did not modify the Agreement that Ms. Moreira prepared, and Mr. Elliot did not make any changes to the Agreement. I presented the Agreement in the form received from Ms. Moreira and Mr. Elliott signed it in the form in which it was presented.”

Elliott, however, alleges that the Draft “does not comport with [his] recollection of the document [he] signed” and that the paper he signed “seemed to state that [he] was going to be compensated and credited as a writer.”

Copyright Lawsuit

Elliott brought claims against Cartagena under the Copyright Act as well as various tort claims, seeking damages and credit as an author of the song. Elliott v. Cartagena, No. 22-255, — F.3d — (2d Cir. Oct. 17, 2023).

The Southern District of New York had granted summary judgment in favor of Cartagena based on the Draft.

On appeal, the Second Circuit held that there was a genuine dispute of material fact about the terms of the contract. The Court noted that Elliot had submitted declarations stating that the document that he signed seemed to state that he was going to be compensated and credited as a writer—something the Draft does not do.

The Court held that the parties' competing statements regarding the authenticity of the Draft as a duplicate of the signed agreement raised a genuine dispute of material fact regarding the terms of the contract for purposes of summary judgment.

Here, while Cartagena may properly introduce the Draft as evidence of the terms of the final, executed agreement, Elliott maintains in sworn testimony that the Draft does not accurately reflect the terms to which he agreed, and defendants' submissions are not so overwhelming as to establish the terms as a matter of law before discovery. It is ultimately for the finder of fact, when determining the terms of the original agreement, to decide how much weight to accord the Draft in light of all the evidence. See United States v. Gerhart, 538 F.2d 807, 809 (8th Cir. 1976) (“[O]nce an enumerated condition of Rule 1004 is met, the proponent may prove the contents of a writing by any secondary evidence, subject to an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with final determination left to the trier of fact.”).


            Finally, even if the contents of the Draft accurately reflect the terms of the final agreement between the parties, the plain language of the Draft does not preclude Elliott from arguing that Cartagena promised him a $5,000 check in addition to promises of more money, credit as a co-writer, and future collaboration and promotion. While the Draft's merger clause states that the “Agreement contains the entire understanding of the parties,” id. at 323, the Draft does not specify a crucial piece of that understanding: what the consideration was. It simply refers to “[t]he consideration set forth above” (with nothing set forth above). Id. Because the Draft does not define the consideration, the plain language of the Draft does not preclude Elliott from arguing that the “good and valuable consideration,” id., that he received at the IHOP meeting included the additional promises described above and the $5,000 check (the latter of which Cartagena and the District Court treat as the only consideration). See DiMauro v. Martin, 359 So. 3d 3, 8 (Fla. Dist. Ct. App. 2023) (“[A] promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do.” (quoting Diaz v. Rood, 851 So. 2d 843, 846 (Fla. Dist. Ct. App. 2003))). Elliott's sworn testimony establishes a genuine dispute of material fact on this point

Accordingly, the Court held that “summary judgment was improper because genuine disputes of material fact exist as to whether Elliott validly assigned all of his rights and as to whether any such assignment precludes all of Elliott's potential claims.”

Thomas P. Howard, LLC litigates nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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