## Facts

- Sylvania Electric Products, Inc. owned a plant in Needham, Massachusetts where a parking lot was being constructed, requiring removal of ledge material.
- Paul L. Flanagan, doing business as Paul L. Flanagan and Sons, hauled sand, gravel, stone, and similar materials and supplied trucks for hauling.
- Flanagan claimed that on May 27, 1963, he and Sylvania formed an oral contract under which Sylvania would pay $13 per truck-hour to haul ledge material away from the site.
- The hauling occurred from May 27 to June 10, 1963, and from June 17 to July 1, 1963, using Flanagan’s own trucks and rented trucks.
- Flanagan sought payment for 1,932.5 truck-hours, totaling $25,267.50, including an uncontested $145 bulldozer charge that Sylvania refused to pay.
- Flanagan’s recordkeeping process ran from daily job-site slips to on-site “tally sheets,” and then to invoices and a later-prepared summary based on the tally sheets.
- At trial, Flanagan produced only the invoices and the summary; the underlying tally sheets were not produced.
- Flanagan testified it was not his practice to keep tally sheets after reconciling them with invoices, but also acknowledged he might have some tally sheets at home and evidence suggested he possessed some after the payment dispute arose.
- Over Sylvania’s best-evidence objection, the district court admitted the invoices and summary and the jury returned a verdict for Flanagan for the full amount claimed.

## Issues

1. Whether the best evidence rule barred admission of invoices and a summary offered to prove the contents of missing tally sheets when the tally sheets were the primary contemporaneous records of the disputed truck-hours.
2. Whether the proponent of secondary evidence must show the originals are unavailable through no bad faith and that a reasonable and diligent search was made before secondary evidence may be admitted.
3. Whether the trial court erred by admitting secondary evidence without preliminary findings establishing unavailability of the originals and adequate search efforts.

## Decision

- The First Circuit vacated the judgment, set aside the verdict, and remanded for a new trial.
- The court held that the invoices and summary were secondary evidence of the tally sheets’ contents and should not have been admitted without proof that the tally sheets were unavailable despite a reasonable and diligent search.
- The court emphasized that the tally sheets formed the foundation of the damages claim and that stricter proof of loss or unavailability was required before substituting secondary evidence.
- The court declined to order a directed verdict, leaving the merits for retrial if proper foundational proof and admissible evidence are presented.

## Legal Principles

- When a party seeks to prove the contents of a writing, the original must be produced unless its absence is satisfactorily explained.
- Secondary evidence of a writing’s contents is inadmissible unless the proponent shows the original is unavailable through no bad faith and that a reasonable and diligent search was made.
- Where missing writings are central to the claim and the contents are contested, courts require heightened rigor in proving loss or unavailability before admitting secondary evidence.
- Summaries and invoices derived from earlier records may be treated as secondary evidence when their function is to reproduce the contents of the missing writings, rather than serve as independent proof.

## Conclusion

The First Circuit required exclusion of invoices and a summary offered to prove disputed truck-hours because the tally sheets were the foundational original records and the proponent failed to show unavailability and a reasonable, diligent search; the case was remanded for a new trial.


Sylvania Elec. Prods., Inc. v. Flanagan, 352 F.2d 1005 (1st Cir. 1965)