Rule 1004 Admissibility of Other Evidence of Contents

Contents. This rule is identical to its federal counterpart and is very similar to Uniform Rule 70(1) (a)—(d). It is based on a common law tradition which permits secondary evidence to be used to prove the contents of a writing, recording, or photograph when failure to produce the original can be ex- plained satisfactorily. The Commissioner’s Note following the Uniform Rule expresses the concerns underlying this rule: The “Best Evidence Rule” at common law as well as here is a preferential rather than an exclusionary rule. Its object is to prevent a litigant from depriving the trier of fact, by fraudulent design, of the benefit of the only certain proof of the content of a writing, the writing itself. 9A Uniform Laws Annotated 654 (1965). When the requirements of one of the four subdivisions are satisfied, there is little or no reason to fear fraud or other sharp practices. Thus, secondary evidence is deemed admissible.

(a) Original Is Lost or Destroyed. This subdivision permits secondary evidence if a proponent can show that the originals are lost or have been destroyed without bad faith on his part. Evidence of a search made in good faith of the places where an original would be found if it existed should be sufficient foundation to prove loss when no direct evidence is available. The important factor here is that a proponent should not benefit by admitting secondary evidence where the original was lost or suppressed at his own instance. This extends to situations where third parties have destroyed the original acting at the direction of the proponent. See McCormick (2d ed.) § 237.

(b) Original Not Obtainable. When the original is in the possession of a third party who is not a party to the case, the original should be obtained by judicial process, i.e., such as a subpoena duces tecum. Where the third party is beyond the subpoena power of the trial court and no judicial process or procedure can avail, secondary evidence can be introduced. Great expense or difficulty are not sufficient to establish excuse under this provision. See McCormick (2d ed.) § 238. This may seem harsh, but the originals are by definition, see subdivision (d), closely related to a controlling issue in a case.

(c) Original in Possession of Opponent. If an adverse party is put on notice that the contents of a writing, recording or photograph are to be proved at trial and the original is in his control, if he fails to produce it secondary evidence can be introduced. The party against whom it is being offered has the ability to supply the original and failure to do so indicates lack of concern. The notice requirement must afford the party a EV reasonable chance to produce the original. This requirement can be met in the pleadings or otherwise, if calculated to alert the party that the original is necessary. Note that unlike discovery procedures such as orders to produce, there is no compulsion to produce, only the timely chance to substitute an original for secondary evidence. See McCormick (2d ed.) § 239.

(d) Collateral Matters. When the contents of the writing, recording or photograph are not closely related to a controlling issue in the trial, secondary evidence will be permitted. This is often referred to as the exception for collateral evidence. The trial judge will exercise some discretion in determining whether evidence is related to collateral issues by considering such factors as (a) the centrality to principal issues of litigation; (b) the complexity of relevant features of the writing; and (c) the existence of genuine dispute as to the contents. McCormick (2d ed.) § 234 at 565-566. If Rules 1003, 1005, 1006, or 1007 are utilized, there is no reason to use Rule 1004. Rule 1004 applies when there is no other rule allowing secondary evidence and the proponent of the evidence must justify its admission in lieu of the original.