§ 30.08 EXCEPTION — ORIGINAL IN OPPONENT'S POSSESSION: FRE 1004(C)

• Jurisdiction: United States

§ 30.08. EXCEPTION — ORIGINAL IN OPPONENT'S POSSESSION: FRE 1004(c)

Secondary evidence is admissible if the opposing party fails to produce the original at trial, despite having been put on notice while the original was under her control, that it would be subject to proof at trial. "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."⁵⁸ Notice may occur by the pleadings or otherwise. A different provision, Rule 1007, governs admissions by an opposing party.

Discovery. Rule 1004(c) is not a discovery rule.⁵⁹ If a party in a civil case wants the original produced, it should be sought through discovery.⁶⁰

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Notes:

^[58] Fed. R. Evid. 1004 advisory committee's note.

^[59] Id. ("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.").

^[60] Fed. R. Civ. P. 34 (production of documents). Discovery in criminal cases is often limited to...