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.
Rule 1004 was amended, effective March 1, 2014.
Rule 1004 is based on Fed.R.Ev. 1004.
Rule 1004 excuses production of an original writing, recording, or photograph in four cases:
(1) Subject to a good faith requirement on the part of a proponent of evidence, subdivision (a) continues the common law exception that secondary evidence is admissible whenever an original has been lost or destroyed.
Under subdivision (a), the intentional destruction of an original does not automatically preclude admission of secondary evidence as to its contents. For example, destruction in the ordinary course of business or by mistake is sufficient to allow the contents to be shown as in other cases of loss.
The most common means of proving loss or destruction is by showing that a search has been made and that it did not produce the document in question. It is difficult to describe with preciseness the type of search that will be sufficient to prove loss or destruction; perhaps nothing meaningful can be said other than that the search must be diligent. It is the function of the trial judge to determine whether proof of a search satisfactorily removes the possibility of fraud. See N.D.R.Ev. 104.
(2) Subdivision (b) applies when the writing, recording, or photograph in question is in the possession or control of a person not a party to the litigation. In those cases in which the original is in the possession of a party opponent, subdivision (c) governs.
The fact that a subpoena duces tecum has been served upon a person within the state, under N.D.R.Civ.P. 45, or N.D.R.Crim.P. 17, and has been dishonored will constitute a showing that an original is not obtainable, sufficient under this rule to permit the introduction of secondary evidence.
Documents may also be ordered produced in conjunction with the taking of depositions under N.D.R.Civ.P. 28, and N.D.R.Crim.P. 15. Again, failure to produce the documents will constitute a sufficient showing under this rule.
(3) In contrast to the showing required under subdivision (b), whenever an original is in the possession of an opponent all that need be shown is that the opponent was "put on notice" that the contents of the original would be a subject of proof at the hearing. The notice may be held to be given by the pleadings in cases where it is clear that the document in possession of the opponent will be a subject of proof. An example would be a suit involving the terms of a contract or deed.
The safest way to insure that adequate notice is given is to provide written notice. This practice should become a matter of course under this paragraph.
(4) Subdivision (d) is intended to relieve the requirements of Rule 1002 whenever a writing in question "is not closely related to a controlling issue." The rule is necessary to the orderly conduct of a trial. As stated by McCormick:
"At nearly every turn in human affairs some writing a letter, a bill of sale, a newspaper, a deed plays a part. Consequently any narration by a witness is likely to include many references to transactions consisting partly of written communications or other writings. A witness to a confession, for example, identifies the date as being the day after the crime because he read of the crime in the newspaper that day, or a witness may state that he was unable to procure a certain article because it was patented. It is apparent that it is impracticable to forbid such references except upon condition that the writings (e.g., the newspaper, and the patent) be produced in court. Recognition of an exception exempting "collateral writings' from the operation of the basic rule has followed as a necessary concession to expedition of trials and clearness of narration, interests which outweigh, in the case of merely incidental references to documents, the need for perfect exactitude in the presentation of these documents' contents." McCormick on Evidence234 at 565 (2d ed. 1972).
Rule 1004 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 1004 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
SOURCES: Joint Procedure Committee Minutes of September 27, 2012, page 28; March 24-25, 1988, page 12; December 3, 1987, page 15; January 29, 1976, page 15. Fed.R.Ev. 1004; Rule 1004, SBAND proposal.
Cross Reference: N.D.R.Ev. 104 (Preliminary Questions); N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken); N.D.R.Civ.P. 45 (Subpoena); N.D.R.Crim.P. 15(Depositions); N.D.R.Crim.P. 17 (Subpoena).