Losing the Original

The discovery that an original has gone produces more panic than it deserves. Courts and agencies deal with lost documents constantly and have well-worn routes for handling them. The routes all begin at the same place: a clear, specific and honest account of what the document was and what became of it.

What the rule actually allows

Other evidence of contents. Once the original is shown to be unavailable, the contents may be proved by a copy, by a draft, by correspondence quoting it, or by the recollection of somebody who read it.

No hierarchy among the substitutes. There is no requirement to produce the best available substitute first; a witness who read the document is admissible even where a copy also exists, and the weight is a separate question.

Bad faith closes the door. Where the proponent destroyed the original in bad faith, other evidence of its contents is shut out, which is the whole practical significance of the condition.

Loss by somebody else is not bad faith. A document destroyed by a third party, a landlord clearing a unit, or a bank applying a retention schedule does not disqualify anybody.

Public records are separate. Where the missing document was a public record, the route runs through the register rather than through this rule, because the office holds the entry.

The account of the loss

What the document was. Described specifically: its date if known, who made it, who held it, what it said, and how the person giving the account came to know that.

When it was last seen. By whom, in what place, and in what circumstances. An account that cannot place the document anywhere at any point is a weak account however sincere.

What is believed to have happened. A move, a flood, an office closure, a clear-out, a theft. Naming the event is far stronger than saying the document cannot be found.

What search has been made. Which locations, which people asked, which institutions approached, and what each of them said. This is the part most accounts leave out.

Why no further search will help. Because the building was demolished, the company dissolved, the retention period expired. A concluded search is more persuasive than a continuing one.

The search that should happen first

The counterpart holder. Where two copies were executed, the other party has one. This single step resolves a large share of lost-original problems and is skipped surprisingly often.

Whoever drafted it. Lawyers, accountants and agents retain files for years, and their copy frequently carries markings that make it more useful than the original would have been.

The recipient institution. Banks, registries, insurers and agencies hold what they were sent, and asking an agency for its own file is a formal route that often produces the document.

Storage and estate holdings. Boxes in storage units, safe deposit boxes and papers gathered after a death are the commonest places a document is found once somebody actually looks.

Electronic traces. An emailed copy, a scan on an old machine, or a backup, and preserving a device before it changes matters if the search reaches old hardware.

Instruments that carry a presumption

Wills last held by the testator. In most states the absence of the original raises a presumption that the testator destroyed it with the intention of revoking it, which has to be rebutted.

What rebuts the presumption. Evidence that the document was last held by somebody else, that it was lost in an identifiable event, or that the testator continued to speak of it as existing.

Negotiable instruments. Statutory procedures exist for enforcing a lost note, generally requiring an indemnity to protect against the instrument surfacing in another's hands.

Documents of title. Similar procedures, with a bond or indemnity, because possession of the paper is what the system relies on.

Ordinary documents carry no presumption. For a contract, a letter or a receipt, loss is simply loss, and the ordinary rule applies without any adverse inference.

How to lose nothing next time

Scan on receipt. The cheapest single measure available. A scan made when a document arrives survives every later disaster and takes under a minute.

Store the important few separately. Most households have fewer than a dozen documents that genuinely cannot be replaced, and keeping those together is a small task.

Record where things are. A one-page note of what exists and where it is kept is worth more than the documents are, because it converts a search into a retrieval.

Tell somebody else. A document nobody knows about is a document nobody will look for, which is a recurring failure in estates.

Keep the transmission record. Covering letters, receipts and postal records establish that a document existed and where it went, which supports proving that a record once existed.

The reason specificity matters so much is that the rule is guarding against one thing only: a party who destroyed an inconvenient document and now wants to tell everybody what it said. A detailed account of an ordinary loss is inconsistent with that, and the detail is what does the work.

It follows that the account should be assembled while people still remember. Statements taken years after the loss are thin because the details have gone, and the details are precisely the part a decision-maker is listening for.

The search is the other half. A party who has asked the counterpart holder, the drafter and the receiving institution, and who can say what each replied, is in an entirely different position from one who has looked in a cupboard.

Where the document is genuinely gone and the substitutes are thin, the honest course is to say so and to build the case from other material. A reconstructed document presented with more confidence than the evidence supports invites exactly the scrutiny it cannot survive.

None of this applies to destruction that happens after a dispute has started. That is a different subject with different consequences, and the distinction between losing something and disposing of it is one that decision-makers examine closely. There are also situations where nothing is lost and a copy would have been accepted anyway, which is the question in when a Copy Is Enough.