COMPLYING WITH RULE 10(d), MRCP
November 30, 2010 § Leave a comment
Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”
Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading. That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).
So what do you need to do to avoid an evidentiary problem under Rule 10(d)?
As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,” and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading. The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.
From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.