An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Summary and Explanation
Federal Rule of Evidence 1004 addresses the admissibility of evidence other than the original document under certain circumstances. Here’s a summary and explanation:
Content of the Rule: Rule 1004 states that the original is not required, and other evidence of the content of a writing, recording, or photograph is admissible in the following situations:
- All Originals Lost or Destroyed: If all the originals are lost or destroyed, and not by the party acting in bad faith, other evidence of the content is admissible. This acknowledges situations where the original cannot be produced due to circumstances beyond the control of the party seeking to introduce the evidence.
- Original Not Obtainable: If the original cannot be obtained by any available judicial process or procedure, a substitute is allowed. This covers situations where the original is located in a place where the court has no jurisdiction or is otherwise legally unobtainable.
- Opponent Has Control of Original: When a party against whom the original would be offered controls the original and fails to produce it after being put on notice that the original will be a subject of proof at the trial, other evidence of the content is admissible. This prevents a party from unfairly withholding evidence.
- Not Closely Related to a Controlling Issue: If the writing, recording, or photograph is not closely related to a controlling issue in the case, a duplicate or other evidence of its content is permissible. This applies when the document in question is not central to the case’s outcome.
Purpose and Application: The rule serves to prevent the exclusion of important evidence simply because the original is unavailable for reasons beyond the control of the presenting party. It ensures that the judicial process is not hampered by the unavailability of original documents, especially when their content is not significantly disputed.
In summary, Rule 1004 provides exceptions to the Best Evidence Rule (Rule 1002), allowing for the admission of secondary evidence of a document’s contents when the original is lost, destroyed, unobtainable, controlled by the opposing party, or not central to the main issue of the case. This rule reflects a practical approach to evidence admission, balancing the need for original documents with the realities of their availability and relevance.
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Basically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactory explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused.
The rule recognizes no “degrees” of secondary evidence. While strict logic might call for extending the principle of preference beyond simply preferring the original, the formulation of a hierarchy of preferences and a procedure for making it effective is believed to involve unwarranted complexities. Most, if not all, that would be accomplished by an extended scheme of preferences will, in any event, be achieved through the normal motivation of a party to present the most convincing evidence possible and the arguments and procedures available to his opponent if he does not. Compare McCormick §207.
Paragraph (1). Loss or destruction of the original, unless due to bad faith of the proponent, is a satisfactory explanation of nonproduction. McCormick §201.
Paragraph (2). When the original is in the possession of a third person, inability to procure it from him by resort to process or other judicial procedure is sufficient explanation of nonproduction. Judicial procedure includes subpoena duces tecum as an incident to the taking of a deposition in another jurisdiction. No further showing is required. See McCormick §202.
Paragraph (3). A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original. The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so. McCormick §203.
Paragraph (4). While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant’s advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick §200, p. 412, n. 1.
Notes of Committee on the Judiciary, House Report No. 93–650
The Committee approved Rule 1004(1) in the form submitted to Congress. However, the Committee intends that loss or destruction of an original by another person at the instigation of the proponent should be considered as tantamount to loss or destruction in bad faith by the proponent himself.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Committee Notes on Rules—2011 Amendment
The language of Rule 1004 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.