The Use of ''Secondary Evidence'' in New York
In Schozer v. William Penn Life Ins. Co. of NY, 84 NY2d 639, 644 N.E.2d 1353, 620 N.Y.S.2d 797 (1994), the Court of Appeals, in discussing the use of secondary evidence, held that:
No categorical limitations are placed on the types of secondary evidence that are admissible. Nonetheless, the proponent of such derivative proof has the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and "correctly reflects the contents of the original" before ruling on its admissibility. For example, when oral testimony is received to establish the contents of an unavailable writing, the proponent of that proof must establish that the witness is able to recount or recite, from personal knowledge, "substantially and with reasonable accuracy" all of its contents. Once a sufficient foundation for admission is presented, the secondary evidence is "subject to an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with the final determination left to the trier of fact."
Placement of this heavy foundational burden on the proponent of secondary evidence to prove its accuracy as a derivative source of proof serves to reduce the dangers of fraud and prejudice ...
"In other words, the court should give careful consideration to the possible motivation for the nonproduction of the original in determining whether the foundational proof of loss was sufficient." Id. Furthermore, the proponent of any secondary evidence must meet "the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original." Id. at 645.