In this digital age of document storage, management and retention, a lost, misplaced or inadvertently destroyed contract may seem difficult to imagine. But no system is foolproof and humans are, of course, susceptible to error. Though a lost contract may seem like a disaster in the moment, it does not necessarily spell defeat for litigating contract-based claims. How a party advances or responds to evidentiary arguments in these unfortunate but perhaps not-all-that-unusual circumstances could make all the difference.
To be clear, the Texas Rules of Evidence—and any judge or jury—prefers an original writing or authentic duplicate to prove the content of a writing. See Tex. R. Evid. 1002, 1003. After all, there is a reason lawyers call Article X of the Texas Rules of Evidence the “best-evidence rule”: the writing itself is the best (i.e., most reliable, complete and accurate) source of information of the content of the writing. But an original writing is not required and other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith. Tex. R. Evid. 1004(a).