§1004 Admissibility of Other Evidence of Contents

• Library: Evidence Restated Deskbook (2021 Ed.)

§1004 Admissibility of Other Evidence of Contents

A. Admissibility of secondary evidence generally. The original is not required, and other evidence of the contents of a writing or recording is admissible if:

1. Originals lost or destroyed. All originals are lost or have been destroyed unless the proponent lost or destroyed them in bad faith.

2. Original unavailable. The original is unavailable unless the unavailability is because of the fault of the proponent.

3. Original in possession of opponent. It is shown that an original is in the possession or control of an adverse party and the proponent of the secondary evidence has done all in the proponent's power to secure production by giving the adversary notice to produce or has supplied an adequate reason excusing the giving of the notice. An allegation in a pleading or the nature of the proceedings may provide sufficient notice to an adversary that the content of a writing is in issue and should be produced.

4. A collateral matter is involved.

a. The content of the writing or recording is not disputed, even though the content bears upon a fundamental issue in the case; or

b. The issue that the evidence tends to prove is collateral to the main issue in the case and is not fundamental to the cause of action or defense.

B. Degrees of secondary evidence. When secondary evidence is to be admitted, the best form of it is required, or the unavailability of any better form must be accounted for by the proponent in the manner required in an instance of nonproduction of the original under §1004.A below.

Notes

A. Admissibility of secondary evidence generally

Secondary evidence of the content of a writing or recording may be admitted if the proponent demonstrates that the original is:

· lost or destroyed;

· outside the jurisdiction of the court;

· in the possession or control of an adverse party, or otherwise unavailable or inaccessible to the offering party; or

· voluminous or complicated.

See:

· Wheelhouse Marina Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761, 768 (Mo. App. S.D. 2009)

· Boroughf v. Bank of Am., N.A., 159 S.W.3d 498, 503 (Mo. App. S.D. 2005)

· Tobias v. Korman, 141 S.W.3d 468, 473 (Mo. App. E.D. 2004)

· Walton v. City of Berkeley, 118 S.W.3d 617, 621 (Mo. App. E.D. 2003)

· Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481, 484 (Mo. App. S.D. 1995)

· Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 283 (Mo. App. E.D. 1979)

· Kennedy v. Boken Assocs., Inc., 381 S.W.2d 39, 41 (Mo. App. E.D. 1964)

1. Originals lost or destroyed

When the original has been lost or destroyed, proof in secondary form is generally admissible if shown to be trustworthy. SeeBoroughf v. Bank of Am., N.A., 159 S.W.3d 498, 503–05 (Mo. App. S.D. 2005); Scrivner v. Am. Car & Foundry, 50 S.W.2d 1001, 1008 (Mo. banc 1932). "[T]he sufficiency of the evidence on the preliminary proof rest[s] . . . in the sound discretion of the trial court, whose determination will not be disturbed by an appellate court, although it is reviewable and may be overruled when an abuse of discretion amounting to error of law appears." Scrivner, 50 S.W.2d at 1008; see also State v. Anderson, 384 S.W.2d 591, 603 (Mo. banc 1964). Generally, if the proponent can prove that it has "not acted in bad faith" to prevent the introduction of the original, the secondary evidence should be received. State v. Rhodes, 869 S.W.2d 797, 799 (Mo. App. W.D. 1994); State v. Durham, 822 S.W.2d 453, 454–55 (Mo. App. E.D. 1991); see also City of Kansas City ex rel. Jennings v. Integon Indem. Corp., 857 S.W.2d 233, 237 (Mo. App. W.D. 1993) (secondary evidence was permitted when the proponent showed that his attorney inadvertently misplaced or lost the originals and could not locate them).

2. Original unavailable

Secondary evidence is admissible if:

· the original is unavailable;

· its unavailability is not because of the proponent's fault; and

· it is trustworthy.

Student Loan Mktg. Ass'n v. Holloway, 25 S.W.3d 699, 705 (Mo. App. W.D. 2000); State v. Zimmerman, 886 S.W.2d 684, 691 (Mo. App. S.D. 1994); Ousley v. Casada, 985 S.W.2d 757, 758 (Mo. banc 1999).

But "[t]he offering party need not prove the unavailability or nonexistence of the primary evidence beyond the possibility of mistake." Walton v. City of Berkeley, 118 S.W.3d 617, 621 (Mo. App. E.D. 2003); Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 284 (Mo. App. E.D. 1979).

"The trial court is vested with wide discretion in determining the sufficiency of a foundation for the introduction of secondary evidence." Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481, 484 (Mo. App. S.D. 1995); Tobias v. Korman, 141 S.W.3d 468, 473 (Mo. App. E.D. 2004). A trial court's discretion is subject to reversal only if there has been clear abuse. In re Estate of Looney, 975 S.W.2d 508, 514 (Mo. App. S.D. 1998); see:

· Wheelhouse Marina Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761, 768 (Mo. App. S.D. 2009) (the

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