Testimony Regarding Documents Precluded by Best Evidence Rule

On November 13, 2014, the First Department issued a decision in Shanmugam v. SCI Engineering, P.C., 2014 NY Slip Op. 07749, affirming a trial court’s exclusion of evidence under the best evidence rule.

In Shanmugam, the trial court precluded the defendant “from presenting testimony concerning the value of defendant company’s carry-forward contracts, accounts receivable, and monthly billings,” because it had not produced the underlying documents. The First Department affirmed, explaining that the preclusion was proper because

the best evidence rule requires production of those documents themselves, and since defendant did not proffer an adequate explanation for his failure to produce the documents. Because testimony on the value of the assets at issue would be based on the contents of the unproduced documents, any such testimony would also be inadmissible hearsay. Similarly, the court properly precluded any testimony concerning client dissatisfaction with defendant company, as such testimony would be based on the client’s out-of-court statements and would constitute inadmissible hearsay. The prelitigation letter by defendant to plaintiff explaining his refusal to pay on the notes at issue was also properly precluded as inadmissible hearsay. Defendant’s alleged availability to testify at trial about the contents of the letter does not, alone, render the letter admissible. Lastly, the court properly precluded defendant’s summary of customer revenues for 2012; even if relevant, the summary is inadmissible under the best evidence rule, as it is based on defendant company’s books and records, which defendant, without explanation, failed to produce during discovery.

(Internal citations omitted).