Brief Fact Summary. Plaintiff owned a truck hauling business and filed a breach of contract suit seeking payment on an oral contract with Defendant. Plaintiff was to haul certain material away from a job site at $13 per hour per truck. The final bill came to over $25,000 and Defendant refused to pay.
Synopsis of Rule of Law. Secondary evidence of the content of the original is not admissible unless the proponent shows that a reasonable and diligent search was made for the original.
Issue. Was the secondary evidence admitted in violation of the best evidence rule?
Held. Justice McEntee issued the opinion for the United States Fifth Circuit Court of Appeals in holding the secondary evidence should not have been admitted as the Plaintiff did not show that the original tally sheets were in fact unavailable or that a reasonable search had been done to find them. The Court ordered a new trial.
Discussion. An examination of the original records could very well corrobate Defendant’s account of the facts over Plaintiff’s. Plaintiff testified that he knew he had some tally sheets at home, but he never produced them to the Court. Further, Plaintiff did not offer any evidence to show that he conducted a diligent search.