Rule 1004  Admissibility of other evidence of contents.  The original or a duplicate 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 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, the party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and the 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. [L 1980, c 164, pt of §1; gen ch 1985]

 

RULE 1004 COMMENTARY

 

  This rule is similar to Fed. R. Evid. 1004, except that the words "or a duplicate" are added to the first sentence of this rule.  The change is not substantive.  The rule specifies the exceptions to Rule 1002, and effects no change in existing law, see Chu Chung v. Jellings, 30 H. 784 (1929) (destroyed); Rex v. Lenehan, 3 H. 714 (1876) (possession of opponent).

  As the Advisory Committee's Note to Fed. R. Evid. 1004 points out, the "rule recognizes no 'degrees' of secondary evidence."  Thus, when this rule is satisfied, there is no preference for one form of secondary evidence over another.