United States: ‘Ancient' Data (And Documents): Prepare For Federal Changes To A Long-Standing Hearsay Exception

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.