The original is not required, and secondary evidence of the contents of the writing or record is admissible, if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(c) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(d) Collateral Matters. The writing or record is not closely related to a controlling issue.
This section is taken nearly verbatim from Fed. R. Evid. 1004 and Proposed Mass. R. Evid. 1004, both of which reflect Massachusetts practice.
Subsection (a). This subsection is derived from Commonwealth v. Ocasio, 434 Mass. 1, 7, 746 N.E.2d 469, 474 (2001), quoting Proposed Mass. R. Evid. 1004(a). See also Old Colony Trust Co. v. Shaw, 348 Mass. 212, 219, 202 N.E.2d 785, 790–791 (1964); Fauci v. Mulready, 337 Mass. 532, 540–542, 150 N.E.2d 286, 291–292 (1958); Joannes v. Bennett, 87 Mass. 169, 172–173 (1862); Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 520–521, 475 N.E.2d 1236, 1240 (1985).
“[I]n order to permit proof by secondary evidence of the contents of [a lost original], the trial judge must make preliminary findings that the original had become unavailable, otherwise than through the serious fault of the proponent . . . and that reasonable search had been made for it.” Fauci v. Mulready, 337 Mass. at 540, 150 N.E.2d at 291.
Subsection (b). This subsection is derived from Topping v. Bickford, 86 Mass. 120, 122 (1862), and Commonwealth v. Smith, 151 Mass. 491, 495, 24 N.E. 677, 677–678 (1890).
Subsection (c). This subsection is derived from Fisher v. Swartz, 333 Mass. 265, 271, 130 N.E.2d 575, 579 (1955) (defendant had an original in court and refused to produce it on plaintiff’s request so secondary evidence was admitted); Commonwealth v. Slocomb, 260 Mass. 288, 291, 157 N.E. 350, 351 (1927) (when pleadings disclose proof of a document that will be necessary at trial, no further notice is necessary, and if the party fails to produce the document, secondary evidence is admissible). Cf. Cregg v. Puritan Trust Co., 237 Mass. 146, 149–150, 129 N.E. 428, 429 (1921) (“The failure of the defendant to produce its books and accounts when summoned by a subpoena duces tecum conferred authority on the court to compel that production by proper process, and authorized the plaintiff to introduce parol evidence of the contents of such books and records. A like result follows upon the failure of a party at the trial to produce on reasonable demand writings which are material to the issue. The failure to produce documents on demand at a trial or on the subpoena duces tecum, is not in itself evidence of the alleged contents of such documents.” [Citations omitted.]).
Subsection (d). This subsection is derived from Smith v. Abington Sav. Bank, 171 Mass. 178, 184, 50 N.E. 545, 546 (1898). See also Commonwealth v. Borasky, 214 Mass. 313, 317, 101 N.E. 377, 379 (1913) (defendant’s objection to testimony of physician, who performed autopsy, on the ground that the record was the best evidence, was properly overruled as “[t]he testimony of the witness who was present and observed the condition revealed by the autopsy was admissible”); Beauregard v. Benjamin F. Smith Co., 213 Mass. 259, 264, 100 N.E. 627, 628 (1913) (sheriff was permitted to testify as to where he served the defendant without producing the official return of service); Eagle Bank at New Haven v. Chapin, 20 Mass. 180, 182–183 (1825) (parol evidence of a notice to an endorser admissible without calling on the party to produce the written notice received by him).