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October 15, 2015 by Mindee J. ReubenDownload PDF

Ancient Documents in the Age of Electronic DiscoveryMindee J. Reuben

The Advisory Committee on Evidence Rules (“Advisory Committee”), part of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, is seeking approval to abrogate Federal Rule of Evidence 803(16), the ancient documents exception to the hearsay rule. The proposed amendment grew out of the Advisory Committee’s concerns about the growth of electronically stored information (“ESI”) and the potential for abuse of F.R.E. 803(16) in the ESI context.   

Hearsay is an out-of-court statement offered in evidence “to prove the truth of the matter asserted.” F.R.E. 801(c). Hearsay evidence is not admissible unless an exception applies. See, e.g., F.R.E. 803 (listing certain exceptions). The ancient documents exception permits “[a] statement in a document that is at least 20 years old and whose authenticity is established” to be offered in evidence over a hearsay objection. F.R.E. 803(16). The exception is one of necessity; that is, there being no better evidence available, resort to circumstantial evidence is permissible. See May 7, 2015 Report of the Advisory Committee on Evidence Rules (“Report”) at 19. 

 The continuing vitality of the ancient documents exception was called into question by the Advisory Committee because it was concerned that the exception could be abused if utilized to admit ESI (which can easily be retained for more than 20 years). In particular, the Advisory Committee was concerned that the exception “could be used to admit only unreliable hearsay, because if the hearsay is in fact reliable it will probably be admissible under other reliability-based exceptions ….” Report at 18. The Advisory Committee also questioned the need for an ancient documents exception in the ESI context “for the very reason that there may well be a great deal of reliable electronic data available to prove any dispute of fact.” Id. 

The Advisory Committee reached several conclusions as a result of its evaluation. First, the ancient documents exception is unnecessary because such a document can likely be admitted under other hearsay exceptions, including F.R.E. 807 (residual exception to hearsay). Second, the exception is problematic in certain criminal cases where there are no controlling statutes of limitations. Third, the ongoing aging and retention of ESI creates a risk that unreliable ESI will be deemed reliable and automatically admissible simply because it reaches 20 years. Fourth, the ancient documents exception is not “venerated” under the common law. Originally intended to be used in title cases, it has been expanded beyond its intended parameters. Finally, although the exception is based on necessity, if the document is truly necessary, it should satisfy F.R.E. 807 as long as it is reliable. Report at 18-19. 

The Advisory Committee also considered less drastic measures than abrogation to address their ESI concerns. The alternative proposals were rejected, either because they would case too much confusion (e.g., limiting the exception to hard copy documents), or because the resulting amendment would be too similar to other hearsay exceptions (in particular, the residual hearsay exception of F.R.E. 807). Report at 19. 

Although one commentator has criticized (perhaps rightly) the abrogation of the ancient documents rule as being “akin to using a sledgehammer to kill a gnat,”[1]  the residual hearsay exception of F.R.E. 807 combined with the authentication requirements of F.R.E. 901(b)(8) for ancient documents should be sufficient to ensure that no effect is felt from the proposed amendment.

The Advisory Committee invites public comment  on the proposed amendment until Tuesday, February 16, 2016, at 11:59 p.m.  The amendment is intended to go into effect on December 1, 2017.



[1] Peter Nicolas, Saving an Old Friend from Extinction: A Proposal to Amend Rather than to Abrogate the Ancient Documents Hearsay Exception, UCLA L. Rev. Discourse (forthcoming 2015).  An electronic copy is available here.