whether due execution of the document should be proven before or after the loss has been established. It would appear that establishing the existence of the document would occur simultaneously with showing the execution of the document, inasmuch, as both requirements contain proof of elements of each. ILLUSTRATION If X is testifying concerning the loss of his copy of a contract, which he executed with Y, it is not important at this point for X to testify that Y signed or executed the contract. On the other hand, how will he establish that a contract existed unless he demonstrates that Y signed the paper. The extent to which a party must search for a missing document, before secondary evidence is allowed, depends in large measure on the following factors: 1) Whether the circumstances suggest bad faith on the part of the proponent of the secondary evidence; 2) The importance of the document and how its loss will impact upon the case (where the loss may defeat the cause of action, an extensive search should be mounted); 3) The age of the instrument (the probability of loss or destruction increases with age); 4) The lapse of time since the document was last seen; and 5) Whether the document was lost before or after the lawsuit was filed In establishing whether an adequate search was made for the original, the court should inquire into whether the proponent has searched every place such a document would likely to have been laid and whether every person who may have had an opportunity to see it or move it was questioned. The question of proof necessary to satisfy the court that the loss of the docucircumstances. Moreover, ment was unintentional depends upon the attending circumstances. matters, such as admissibility of other evidence, are left to the sound discretion of the court and are rarely disturbed on appeal. Even where a reasonable juror would find intentional destruction, the matter of motive should be left for the jury to decide. Rule 1004(2) This rule allows the admission of secondary evidence where the original of a writing is not obtainable through service of process, it is being withheld because of privilege, it is beyond the jurisdiction of the court, or the costs for production of the document would be prohibitive. Rule 1004(3) This rule provides for the introduction of secondary evidence where it is shown that the opposing party has the original, has been placed on notice that the contents would be needed as proof and that he refuses to relinquish control over it. Where this occurs the opponent, may not complain of the use of secondary evidence while he holds the original in his possession. There is no reason to provide the opposing party with specific notice where he has been placed on notice through the pleadings. Rule 1004(4) - This rule allows for the introduction of secondary evidence where such evidence touches upon matters collateral to the controlling issues. ILLUSTRATION Assume X sues Y for breach of a contract by failing to deliver rhubarb to his restaurant every Monday as required. X seeks to introduce a letter which he wrote to Y after the contract was executed, which stated that it was imperative that Y fulfill the terms of the contract by delivering the rhubarb. as scheduled. The letter cannot vary the terms of the contract and the only issue for the trier of fact is whether Y performed as required. The question of whether he knew how imperative it was for him to make timely deliveries is collateral to that issue. Accordingly, the letter is inadmissible. The Contents of an official record, of or a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. ELEMENTS A. B. COMMENTS b) Testified to be correct by witness who compared it with original. If no copy meeting above conditions can be obtained, 1. Through exercise of due diligence, 2. Other evidence admissible. This rule provides an exception to the best evidence rule by permitting the introduction of a copy where the document is certified as correct or where the witness has compared it with the original. This rule permits public agencies to continue to conduct business without the inconvenience of having their files removed for court proceedings. Moreover, the constant removal of the original document from the files would subject the document to being lost or injured from the wear and tear of constant removal. Office records on file in accordance with the law are covered by the rule. If a document is required by law to be filed, although it is not an official document (such as deeds, mortgages, liens, etc) the mere filing of the document is prima facie evidence of the authority for file it. Little will be gained by challenging the authority of the clerk to accept it for filing. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. ELEMENTS A. The contents of voluminous writing, recordings or photographs, 1. Which cannot conveniently be examined in court, 2. May be presented in the form of a chart, summary or calculation; This rule allows a party to summarize a mass of evidence or information for introduction in court where the contents are so voluminous that the probative value of the evidence would be lost amid its time consuming and taxing presentation. Where a summary is to be used in lieu of a mass of evidence, the court should be satisfied as to the accuracy of the summary or chart and that it is relevant to the issues before the court. These |