When Original Document Is In Adverse Party’s Custody
On Evidence
When Original Document Is In Adverse
Party’s Custody Or Control
If after reasonable notice is given to the adverse party to produce
the document and after satisfactory proof of the existence of the
document is made, he fails to produce the document, secondary
evidence may be presented.
Facts Which Must Be Shown By The Party Offering Secondary Evidence:
1. The adverse party’s custody or control of the original document
2. That reasonable notice was given to the adverse party who has the
custody or control of the document
3. Satisfactory proof of its existence
4. Failure or refusal by the adverse party to produce it in court.
No particular form of notice is required, as long as it fairly
apprises the other party as to what papers are desired.
Even an oral demand in open court for production at a reasonable time
thereafter will suffice.
Notice must be given to the adverse party, or his attorney, even if
the document is in the actual possession of a third party.
Where receipt of the original of a letter is acknowledge on a carbon
copy thereof, there is no need for a notice to the other party to
produce the original of the latter.
It should be observed that the duplicate copy, if complete, is itself
an original copy and the only point in issue is the receipt of the
basic original copy thereof.
The justified refusal or failure of the adverse party to produce the
document does not give rise to the presumption of suppression of
evidence or create an unfavorable inference against him. It
authorizes the introduction of secondary evidence.
Under this rule, the production of the original document is procured
by mere notice to adverse party and the requirements for such notice
must be complied with as a condition precedent for the subsequent
introduction of secondary evidence by the proponent.
Where the nature of the action is in itself a notice, as where it is
for the recovery or annulment of documents wrongfully obtained or
withheld by the other party, no notice to produce said document is
required.
Bigwas
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