Rule 1004. Admissibility of Other Evidence of Content

all the originals are lost or destroyed, and not by the proponent acting in bad faith;

an original cannot be obtained by any available judicial process;

the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

the writing or record is not closely related to a controlling issue.

Loss or Destruction of an Electronically Stored Record. An original electronically stored record is lost or destroyed within Rule 1004(1) where the message was deleted or edited; where the channel, thread, or server in which it resided was purged, archived, or deleted; where the account in which it resided was abandoned, deleted, or made inaccessible; where an in-game record was lost, overwritten, or reset; or where the record was removed by the retention policy of the platform on which it resided. Where the loss is attributable to the proponent, Rule 1004(6) and Rule 1101 apply.

Bad Faith. A proponent acts in bad faith within Rule 1004(1) where the proponent destroyed, deleted, altered, or permitted the loss of the original for the purpose of preventing its use in the action, or after the duty to preserve had attached under Rule 1101(3) and with knowledge of that duty. Negligence in preserving an original does not by itself constitute bad faith, but is a ground for a sanction under Rule 1101.

Available Judicial Process. An original cannot be obtained by available judicial process within Rule 1004(2) where it is held solely by the operator of a platform and is not reachable by a subpoena under Rid. R. Civ. P. 32 or Rid. R. Crim. P. 17, or where the person holding it is beyond the reach of the court’s process and has not produced it upon request.

Notice to a Party in Control. Notice under Rule 1004(3) may be given by a pleading, by a request for production under Rid. R. Civ. P. 26, by a request in the proceeding communications, or by any other means reasonably calculated to inform the party that the original will be a subject of proof. No particular form of notice is required.

Forms of Other Evidence. Other evidence of content admissible under this rule includes the testimony of a witness who read or observed the writing or record; a duplicate; a capture; an export or log made from the record; a summary prepared under Rule 1006; and an admission of the party against whom the evidence is offered under Rule 1007. Among available forms, the court may require the proponent to offer the form that most reliably proves the content.

Preliminary Showing. A proponent offering evidence under this rule shall first make the showing required by Rule 1008(1). The court’s determination is governed by Rule 1008.