Issue: Applicability of The ‘Lost Original’ Exception of Rule 1004(1).
| Area of Law: | Litigation & Procedure |
| Keywords: | "Lost Original" Exception; Lost Evidence Rule; Admission of secondary evidence |
| Jurisdiction: | Federal |
| Cited Cases: | 146 F.2d 707; 977 F.2d 1067; 613 F. Supp. 1253; 808 F.2d 1316 |
| Cited Statutes: | Rule 1004 |
| Date: | 07/01/2001 |
It has long been the rule that as a prerequisite to the admission of secondary evidence under the lost original exception to the lost evidence rule, the proponent of the evidence bears a burden to lay a foundation by showing the original has been lost. See Simpson & Co. v. Dall, 70 U.S. 460, 474-75 (1865); Sellmayer Packing Co. v. Commissioner of Internal Revenue, 146 F.2d 707, 710 (4th Cir. 1944). In Sellmayer Packing, this Court described the burden as follows:
Under the rule, the party who offers secondary evidence of the contents of a document alleged to be lost must go further than to show that it is doubtful whether or not the document exists; he must demonstrate to the satisfaction of the court that although it once existed, it cannot be found despite a diligent and unsuccessful search and that there is no reasonable probability that it has been designedly withheld or suppressed.
146 F.2d at 710.
After adoption of the Federal Rules of Evidence, the burden remains on the proponent of secondary evidence to establish that the original was lost before secondary evidence will be admitted. See Seiler v. Lucasfilm, Ltd., 613 F. Supp. 1253, 1260 (N.D. Cal. 1984) (“The burden of proving loss or destruction under Rule 1004 is on the proponent of the evidence.”), aff’d, 808 F.2d 1316 (9th 1986); 6 McLaughlin, supra, § 1004.11[4] (“The proponent of [secondary evidence] has […]