Best evidence is a lot like hearsay. To understand the rule, you must understand the exceptions. And, although the best evidence rule exceptions certainly aren’t as numerous as the hearsay exceptions, they are significant.
There are five major exceptions to the best evidence rule, and they are found in Rule 1004 of the Texas Rules of Evidence. Rule 1004, which codified existing state common law exceptions, specifically authorizes “other evidence” to prove the contents of a document when the document (or its duplicate):
- has been lost or destroyed;
- cannot be obtained;
- cannot be found in Texas;
- is in the possession of an opponent who fails to produce it; or
- is offered for a collateral purpose
(These Texas exceptions mirror the Federal Rules of Evidence, except that the federal rules contain no geographical exception equivalent to the third exception.)
The importance of these exceptions can’t be overstated. If an exception applies, then the best evidence rule no longer bars the use of secondary evidence to prove document contents. In practical terms, this means that a witness may, through testimony alone, prove up the contents of a memo or a videotape, without ever tendering the memo or the videotape into evidence. This is why it is so important to understand the exceptions, the applications and the limitations.
Lost or Destroyed: This exception generally applies to inadvertent loss or destruction. Under this exception, a claim that despite a reasonable and good faith effort to locate a document, it cannot be located may be sufficient to permit proof of the contents of a document through testimony or other secondary sources. While the rule envisions accidental loss or destruction, even documents which have been intentionally destroyed may be proved up through secondary sources, assuming no bad faith on the part of the proponent. For example, in one federal case, the I.R.S. was able to use secondary proof of the contents of a taxpayer’s records, even though the agency itself had destroyed the records because the court found the destruction “negligent,” but not in bad faith.
Not Obtainable: This exception provides that secondary sources may be used to prove the contents of a document when it can’t be obtained by any available judicial procedure. The exception is aimed at documents which are not in the possession of any party to the lawsuit which, despite reasonable efforts, simply cannot be obtained, either by informal persuasion or formal process. Obviously, this exception would not apply to any document which could be obtained through subpoena duces tecum or deposition discovery subpoena.
Not in Texas: You don’t have to cross the Red River to look for documents. As a practical matter, however, it may not be a bad idea to make the trip, since your opponent will not be precluded from doing so. And if your opponent should obtain the document, then the exception would no longer apply. In that event, the secondary source of evidence you planned to introduce at trial would now be inadmissible as violative of the best evidence rule, since the document would now be available in Texas.
Opponent Fails to Produce It: This is an interesting rule which allows one party to put the other party on notice that proof of a particular document under the other party’s control will be a subject of proof. If, after being put on notice “by the pleadings or otherwise,” the other party does not produce the original, then secondary sources may be used to prove its contents. One might wonder why this rule is necessary, given all of the discovery tools available today. Since this exception applies to hearings as well as trials, it could be particularly useful in situations involving time constraints. For example, when there is no time to obtain discovery prior to a hearing, or when outstanding discovery has been resisted, the contents of a document which has not yet been produced by the other side may be admissible, as long as adequate notice has been given. Once on notice, then the other side has two choices: (1) produce the document, or (2) face the secondary proof of its contents.
Collateral Purposes: This is perhaps the most important exception to the best evidence rule, and if an attorney can remember only one thing about the best evidence rule, this is it. The best evidence rule does not apply when evidence is offered to prove something other than the contents of a document or when the contents do not relate to a controlling issue. For example, the best evidence rule does not apply when the matter sought to be proven is not content, but notice, service or delivery of a document. Likewise, if a heavy book falls off a shelf and injures a customer standing below, the best evidence doctrine does not require that the book be produced at trial, as the content of the book is a collateral matter.
Summary: In this last series of three blogs, we have examined what the best evidence rule is and what it is not. It is a rule which applies only to “documents” and testimony concerning the contents of documents. It is a rule which allows a duplicate of any document to be just as admissible as the original, with a couple of narrow exceptions.
What it is not is a rule which requires that the best witness be called or the best proof be offered at trial. The application of the best evidence rule does not exclude evidence based on any type of qualitative assessment of the evidence as poor, good, better or best. Its only aim is to insure accuracy of evidence under the premise that proof of the contents of a document should ordinarily come from the document itself.
— Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas
 The term “document” includes writings, recordings or photographs. TRE 1001.
 Originals and duplicates are used interchangeably here, because TRE 1003 elevates the status of a duplicate to that of an original, except under two narrow exceptions discussed in the last blog.
 Rule 1004 uses the word “control,” not merely possession.