§ 30.06 Exception—Original Lost or Destroyed: FRE 1004(a)

• Jurisdiction: United States

§ 30.06 Exception—Original Lost or Destroyed: FRE 1004(a)

Secondary evidence is admissible if the originals are lost or destroyed, provided the offering party has acted in good faith.⁵² The trial court determines whether the proponent has established loss or destruction and the absence of bad faith under Rule 104(a).⁵³ The test is subjective—mere negligence is not bad faith.⁵⁴ It is not uncommon for businesses to implement document destruction policies in order to avoid being swamped with paper.⁵⁵ This exception is also frequently used with electronic evidence due to the myriad of ways that electronic records may be deleted, lost, or purged.⁵⁶ If secondary evidence is admitted, an adverse inference instruction may be appropriate in some cases.⁵⁷

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Notes:

^[52] See Cartier, 59 F.3d at 1049 ("The 'original' for which Ms. Cartier is trying to demonstrate the contents was the demo tape. Therefore, according to Rule 1004([a]), she must show that the demo tapes, and not the rented master tape, had been lost or destroyed."). See also H. R. Rep. No. 650, 93d Cong., 1st Sess. (1973) ("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."), reprinted in 1974 U.S.C.C.A.N. 7075, 7090.

^[53] See Fed. R. Evid. 1008 advisory committee's note ("[T]he question whether the loss of the originals has been established . . . is for the judge."); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir. 1986).

^[54] E.g., Estate of Gryder v. Comm'r., 705 F.2d 336, 338 (8th Cir. 1983) ("[T]he Commissioner was unable to produce the originals of many corporate records, including journals and check-stub books. These records were destroyed by employees of the Internal Revenue Service after Cordial's criminal trial. The Tax Court's finding that these documents were destroyed negligently but not in bad faith is not clearly erroneous; thus, the Commissioner could seek to prove their contents by secondary evidence.").

^[55] See United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (The "tape was not available because it had been erased by its owner, Mr. Johnson, prior to the trial. That had been done in the ordinary course of his business and not at the behest of the government.").

^[56] See Dalton v. Commonwealth, 769 S.E.2d 698, 704 (Va. App. 2015) ("Warren testified that he could not produce the text messages because he did 'not have that phone...