Rule 2:1004.ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

Rule 2:1004 supplies the main exceptions to Rule 2:1002’s original-writing requirement. Four situations excuse production of the original and let a party prove a writing’s contents through other evidence — testimony about the writing, a copy, or other secondary evidence.

The first two situations concern the original’s unavailability. All originals may be lost or destroyed, unless the proponent lost or destroyed them in bad faith — a party cannot destroy the inconvenient original and then rely on this exception. Or no original can be obtained through any available judicial process or procedure, again unless the proponent’s own bad faith rendered the original unavailable. Both exceptions share the same structure: unavailability excuses production, but only if the proponent did not engineer that unavailability.

The third situation shifts the focus to the opponent. If an original was under the control of the party against whom the writing is offered, and that party was put on notice — by the pleadings or otherwise — that the writing’s contents would be a subject of proof at the hearing, and that party still does not produce the original at the hearing, other evidence of the contents becomes admissible. That exception discourages a party from sitting on a document it controls and forcing the opponent to prove the writing’s contents some other way.

The fourth situation does not depend on unavailability at all: if the writing is not closely related to a controlling issue in the case, the original is not required regardless of whether it exists and is obtainable. Collateral writings — ones that touch the case only tangentially — do not warrant the strict production requirement that governs writings central to a controlling issue.