§ Rule 1004. Admissibility of other evidence of contents

Codes > Pennsylvania Statutes and Consolidated Statutes > Rules of > Article X > Rule 1004.

Rule 1004. Admissibility of other evidence of contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph 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; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Comment: This rule is identical to F.R.E. 1004.

Paragraph 1004(1) is consistent with Pennsylvania law. See Olson & French, Inc. v. Commonwealth, 399 Pa. 266, 160 A.2d 401 (1960); Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938). When the proponent of the evidence alleges that it is lost, there should be evidence that a sufficient search was made. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993).

Paragraphs 1004(2), 1004(3) and 1004(4) are consistent with Pennsylvania law. See Otto v. Trump, 115 Pa. 425, 8 A. 786 (1887) (consistent with Pa.R.E. 1004(2)); Abercrombie v. Bailey, 326 Pa. 65, 190 A. 725 (1937) (consistent with Pa.R.E. 1004(3)); Durkin v. Equine Clinics, Inc., 313 Pa. Super. 75, 459 A.2d 417 (1983) (consistent with Pa.R.E. 1004(4)); McCullough v. Holland Furnace Co., 293 Pa. 45, 141 A. 631 (1928) (consistent with Pa.R.E. 1004(4)); see also Comment to Pa.R.E. 1002.

Under F.R.E. 1004, when production of the original is not required, the proffering party need not offer a duplicate even if that is available; the proffering party may present any evidence including oral testimony. See F.R.E. 1004 advisory committee's note. There is no hierarchy of secondary evidence. There is some authority in Pennsylvania that seems to require the next best evidence when presentation of the original is not required. See Otto v. Trump, 115 Pa. 425, 8 A. 786 (1887); Stevenson, Bowen & Nesmith v. Hoy, 43 Pa. 191 (1862). This approach adds an unnecessary level of complexity. The normal motivation of a party to produce the most convincing evidence together with the availability of discovery to uncover fraud seems adequate to control abuse. Thus, Pa.R.E. 1004 follows the approach of F.R.E. 1004.