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RULE 1004

RULE 1004
ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

The original 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 any 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, 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

(4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.

Note:

This rule is identical to the federal rule and is consistent with our case law. It has long been the law in South Carolina that secondary evidence is admissible under the circumstances outlined in this rule. See, e.g., Pee Dee Prod. Credit Ass'n v. Love, 284 S.C. 371, 326 S.E.2d 650 (1984) (original lost); Windham v. Lloyd, 253 S.C. 568, 172 S.E.2d 117 (1970) (original lost); Wynn v. Coney, 232 S.C. 346, 102 S.E.2d 209 (1958) (original in possession of opponent); Greer v. Equitable Life Assur. Soc'y, 180 S.C. 162, 185 S.E. 68 (1936) (collateral matter); Rose v. Winnsboro Nat'l Bank, 41 S.C. 191, 19 S.E. 487 (1894) (original in possession of opponent).