The Criteria for an Exception to the “Best Evidence Rule” for Admission of an Agreement, the Terms of Which Were In Dispute, Were Not Met—New Trial Ordered

The Second Department determined the the criteria for an exception to the “best evidence rule” for the admission of a copy of a joint development agreement, the terms of which were in dispute, were not met. A new trial was ordered. The court explained the rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven… . The rule “serves mainly to protect against fraud, perjury and inaccuracies . . . which derive from faulty memory” … . Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence, and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” … .

Here, the plaintiff failed to adequately explain the unavailability of the primary evidence, i.e., the original executed joint development agreement … . Stathis v Estate of Karas, 2015 NY Slip Op 06330, 2nd Dept 7-29-15