Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from electronic sources (902(14)), are slated to become effective in 2017. These proposals are intended to address potential evidentiary issues arising out of the long-term storage of electronic evidence and unnecessarily cumbersome processes for authentication of electronic evidence.

This post discusses the proposed changes to the hearsay exception for ancient documents. The proposal is interesting because it addresses a fear that has yet to materialize – namely, that electronically stored information older than 20 years will be admissible for the truth of its content under current FRE 803(16).

A Refresher on the Ancient Documents Exception

While it is hard to think of many things – or indeed anything – that can become more reliable with age, the original framers of the ancient documents exception to the hearsay rule felt differently about documents. Federal Rule of Evidence 803(16), commonly referred to as the “ancient document rule,” provides an exception to the hearsay bar for documents that are at least 20 years old. The original rationale behind this rule was that documents of a certain age are more reliable and trustworthy. See Advisory Committee note (“age affords assurance that the writing antedates the present controversy…”).

Of course, this rule was adopted long before electronically stored information was omnipresent in litigation. But even as to paper, according to the Advisory Committee on Evidence that recommended changes to the rule, the rationale for the rule “has always been questionable, because a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20.”

Makes sense. But why the current attention to the ancient documents exception?

Reasons for the Change

In 2015, Fordham Law Professor Daniel Capra, who also serves as the reporter to the Judicial Conference Advisory Committee on Evidence Rules, published an article titled “Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It.” In this article, he identified a concern that “it will not be long before all of the factual assertions in terabytes of easily retrievable data will be potentially admissible for their truth simply because they are old.” This concern is rooted in the continued exponential growth of electronic information, attributable to numerous factors including the ever-decreasing cost of storage and greater access to computers and devices by users around the world.

As the Advisory Committee on Evidence noted in its May 2016 report to the Committee on Rules of Practice and Procedure:

[B]ecause electronically stored information can be retained for more than 20 years, there is a strong likelihood that the ancient documents exception will be used much more frequently in the coming years. And it could be used as a receptacle for unreliable hearsay, because if the hearsay is in fact reliable it will probably be admissible under other reliability-based exceptions, such as the business records exception of the residual exception.

Thus, the Advisory Committee became concerned that the Federal Rules of Evidence offered “a loophole to admit large amounts of old, unreliable ESI” and decided to amend the Rules.

Do not be surprised if this is the first you have heard of this change – very little attention has been given to the proposed changes to the Federal Rules of Evidence, which may surprise many given the breadth of attention given to the changes to the Federal Rules of Civil Procedure that became effective at the end of 2015 (see this blog’s discussion of those changes here, here, here, here and here).

The ancient document rule does not get much attention in published cases – indeed, a search found less than 100 reported cases discussing the rule. This led the Advisory Committee to conclude “that the exception has been tolerated because it has been used relatively infrequently, and usually because there is no other evidence on point.” However, informal polling indicates that the rule is invoked far more often than the cases suggest. Perhaps because of the limited number of published cases, the Advisory Committee initially proposed abolishing Rule 803(16) on the rationale that many so-called “ancient documents” were admissible under other rules like the residual exception, business records or admissions of party-opponents.

Backlash to the Proposal

Criticisms of the proposed abolishment highlighted some questionable assumptions that formed the basis for the proposal. For example, in his essay “Saving an Old Friend from Extinction: A Proposal to Amend Rather than Abrogate the Ancient Documents Hearsay Exception,” University of Washington School of Law Professor Peter Nicolas critiqued the proposal on a number of grounds.

First, Professor Nicolas acknowledged that the rule has been infrequently invoked in reported cases, something that shouldn’t be surprising because noncontroversial application of the rule is unlikely to be reported – the rule can be critical in cases addressing decades-old allegations or injuries with long latency periods. Indeed, the proposed rule was met with a wave of over 200 public comments, most of which opposed abolition. Many commenters opposed abolishing the original proposal because certain types of cases rely on older documents – toxic torts, environmental disputes, asbestos and other chemical exposures, war crimes, claims of sexual abuse of minors, products liability, and land title disputes. Because key documents may be over 20 years old and there may not be a witness available to authenticate them, commenters asserted litigants would be unable to use reliable, trustworthy documents to support their cases.

Second, Professor Nicolas challenged the assumption that the ancient documents exception is a loophole without limits. He noted that other evidentiary rules – including that a declarant speak from personal knowledge (FRE 602), and the majority rule that a hearsay exception does not except hearsay within hearsay – set meaningful limits on admissibility.

In response to this opposition, the Advisory Committee considered different options, but eventually chose a “grandfathering” option that limited the exception to documents prepared before January 1, 1998. This option was sent by the Advisory Committee to the Rules Committee of the Judicial Conference without additional public comment, and the Judicial Conference transmitted the proposed amendment to the Supreme Court on September 28, 2016. Assuming the Supreme Court officially promulgates the revised rules and Congress does not reject, modify or defer the revised rules, the amendment will be effective on December 1, 2017.

The proposed amendment to Rule 803(16) appears simple at first glance, and states an exception to the rule against hearsay for:

A statement in a document that is at least 20 years old that was prepared before January 1, 1998 and whose authenticity is established.

Presently, an ancient document is authenticated if there is evidence that it (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. Fed. R. Evid. 901(8).

Practical Points for Practitioners

It is not entirely clear what “problems” these changes to a mere six words will solve or create. But we note a few concerns and practice points:

  • It is difficult to reconcile the Committee’s apparent acceptance of comments that ancient documents can be important in the resolution of disputes with a long fuse, like latent disease claims, with the decision to simply abolish the rule for documents created on or after January 1, 1998. Indeed, the Committee’s rationale is puzzling:

The assumption that there is “likely to be preserved, reliable ESI that can be used to prove the facts that are currently proved by scarce hardcopy” is uncertain at best. Given corporate record retention policies and systems that become outdated within years, not decades, it is highly likely that easily accessible data will not be maintained for 20-plus years absent a legal requirement to preserve the data or a business need for the data. And individuals are unlikely to maintain 20-plus-year-old data sources in an organized or readily accessible fashion. Moreover, the idea that there will be a “qualified” witness who will be familiar with electronic recordkeeping from decades ago is questionable given the turnover of both technology professionals and the technology itself.

The Committee has considered the possibility that in the future, cases involving latent diseases, CERCLA, etc. will arise. But the Committee has concluded that in such future cases, the ancient documents exception is unlikely to be necessary because, going forward from 1998, there is likely to be preserved, reliable ESI that can be used to prove the facts that are currently proved by scarce hardcopy. If the ESI is generated by a business, then it is likely to be easier to find a qualified witness who is familiar with the electronic recordkeeping than it is under current practice to find a records custodian familiar with hardcopy practices from the 1960’s and earlier.

  • The January 1, 1998, cutoff date still leaves a substantial volume of ESI that would be admissible. By 1998, companies like PayPal, Google and Monster.com existed. People began using Palm Pilots, over 5 million subscribers used AOL and roughly 45 million households had at least one computer. What is more, the amount of data created in 1997 (i.e., “ancient documents” under the rule) is staggering: Yahoo email launched, CD-Rewritable was introduced, business email surpassed regular mail, multimedia cards were released, and cable and broadband internet began to roll out. In other words, the arbitrary Jan. 1, 1998, cutoff will not eliminate the concern identified by the Committee.
  • We also anticipate disputes surrounding the creation date of documents claimed as “ancient.” In its note to the Judicial Conference, the Committee identified a couple of scenarios to address potential date disputes. First, if a hard copy document created in 1995 was scanned years later, 1995 is the operative date for Rule 803(16). Second, if the content of the document is altered after the cutoff date, then the exception will not apply to statements that were added. While this guidance is helpful, one can imagine that the volume of disputes regarding when a document is created will grow under this new ancient document framework.
  • Choice of law and forum shopping incentives may arise because many states still have an ancient documents exception in place (and may not follow the federal changes). According to Professor Nicolas, this change will – unless and until states follow suit – create “a widespread rift between federal and state evidence law,” given that 49 states recognize some form of ancient documents exception to the hearsay rules.
  • It is critical to know your rules of evidence. As noted above, a hearsay declarant must still speak from personal knowledge. As Temple Law Professor Jules Epstein noted, “If courts are receptive to this issue then lawyers should ‘tune in’ to whether a witness has personal knowledge . . . by screening all evidence – and especially hearsay – to see whether the threshold has been met.” And under FRE 403, even ancient documents that are not barred from admission under the hearsay exception should still be excluded if their probative value is substantially outweighed by the risk of unfair prejudice, confusion, delay or cumulative evidence. In addition, while there is some lack of uniformity in the case law, the majority of courts recognize that where ancient documents contain hearsay within hearsay, each level of hearsay must be excepted from the hearsay rule to be admissible. See, e.g., Langboard v. United States Treasury, 832 F.3d 170, 189-90 (2016).

It will also be imperative for advocates to consider the implications of this rule when negotiating discovery limits with their opponents. As we move toward December 2017 and on, it may be easier for you – and your opponent – to admit ESI created before January 1, 1998. Presently that information does not qualify as an ancient document and thus must fit into another hearsay exception.

Stay tuned for this blog’s discussion of the proposed changes to Rules 902(13) and 902(14) – changes that will impact how ESI in various forms, including “ancient” ESI, is authenticated.