27-1004. Rule 1004. Admissibility of other evidence of contents; when.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) No original can be obtained by any available judicial process or procedure; or

(3) At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

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

Source

Annotations

The language of this section, which carves out exceptions to the best evidence rule, makes exceptions for only specific instances of unavailability, such as where the original has been lost or destroyed, cannot be obtained by judicial means, or is not closely related to a controlling issue. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).

Absent evidence of bad faith on the part of university officials, secondary evidence of test scores is admissible where it is shown that the original writings have been lost or destroyed. State ex rel. Mercurio v. Board of Regents, 213 Neb. 251, 329 N.W.2d 87 (1983).

The existence of a written employment contract, alleged by plaintiff and denied by defendant, was properly a question for the jury. Montgomery v. Quantum Labs, Inc., 198 Neb. 160, 251 N.W.2d 892 (1977).