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notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hear-
ing, and that party does not produce the original
at the hearing; * * *
The advisory committee’s notes accompanying FRE 1004 explain the
purpose of the exception to FRE 1002 found in FRE 1004(3), as
follows:
Basically, the rule requiring the production of
the original as proof of contents has developed as a
rule of preference: if failure to produce the original
is satisfactorily explained, secondary evidence is
admissible. The instant rule specifies the circum-
stances under which production of the original is
excused.
It is petitioner’s position that respondent was in control
of the “originals” of the documents, i.e, 25 checks and 1 money
order,15 which certain of respondent’s employees reviewed in
preparing the material entries that are the subject of respon-
dent’s evidentiary objections and which listed the names of the
payors during the years at issue of certain items that were
deposited into petitioner’s accounts. According to petitioner,
because respondent was in control of those “originals”, FRE
1004(3) permits the use of other evidence, i.e., certain entries
in respondent’s workpapers, to prove the identity of those
payors. We disagree.
The “originals” of the documents that identify the payors
during the years at issue of the items that relate to the mate-
15All but one of the items in question that were deposited
into petitioner’s accounts and that relate to the material
entries that are the subject of respondent’s evidentiary objec-
tion were checks of some type, and one of those items was a money
order.
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