Rule 1004. Admissibility of Other Evidence of Content

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.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 1004 and former Federal Rule 1004 are substantially identical, and there is no reason to depart from the language of the restyled Federal Rule.

Advisers' Note to former M.R. Evid. 1004 (February 2, 1976) This rule is largely declaratory of the circumstances under the traditional best evidence rule where production of the original is excused. Loss or destruction of the original, unless the result of the proponent's bad faith, and inability to obtain it from a third person by judicial procedure are obvious grounds. Subdivision (3) provides that a notice to produce is sufficient when the original is in the control of an opposing party. This is not a rule of discovery. It gives the opponent an opportunity to produce but does not compel it. If the opponent does not produce, the proponent will under this subdivision be allowed to offer secondary evidence of the contents of the original. If he does not have any secondary evidence, he must use discovery procedures like M.R.C.P. 34 in order to learn before trial what the original contains. He can then compel production at trial by use of a subpoena duces tecum. The fact that the original is produced pursuant to notice does not make it admissible. Paradis v. Lewiston, Augusta & Waterville St. Ry., 113 Me. 125, 93 A. 56 (1915). It is also now true that the producing party cannot get it admitted merely because it was produced and examined by the opponent. Morgan v. Paine, 312 A.2d 178, 185 (Me. 1973) (overruling prior decisions to the contrary). The rule does not recognize degrees of secondary evidence so as to require the "second best" evidence when the original is not available. It has the virtue of simplicity, and the practical motivation to get the most satisfactory evidence possible lest an adverse inference be drawn tends to prevent abuse. This is the English approach, followed in some American cases, but most of the courts in this country do set up orders of preference, such as preferring a written copy to oral testimony. The rule gives no special status to "duplicates"; that is, counterparts produced by a method so accurate as to eliminate the possibility of error. The Federal Rule makes a duplicate admissible to the same extent as an original unless in the circumstances it is unfair or unless a "genuine question" is raised as to the authenticity of the original. The determination of what constituted a genuine question might well impose great difficulties, as for example when counsel objects to the duplicate on the plausible ground that he does not know about the authenticity of the original and wishes to put his opponent to his proof. It appears that special treatment of duplicates would cause more trouble than it is worth. Naturally a duplicate will still be admissible as secondary evidence when production of the original is excused under this rule. When it comes to a motion for a new trial or on appeal, an asserted error in admitting secondary evidence may be classed as harmless. The purpose of the best evidence rule is to secure the most reliable information as to the contents of a document when its terms are disputed. The rule is not an end in itself. Consequently if complaining counsel is asked whether there is an actual dispute as to the terms of the writing and he cannot give assurance that such a good faith dispute exists, any deviation from the rule should be harmless error.