Out with the Ancient and in with the New: 2017 Changes to Federal Rule of Evidence 803(16)

Proposed FRE Amendment Removes “Ancient Document” Rule, O’CONNOR’S ANNOTATIONS (Sept. 28, 2015), https://www.oconnors.com/blog/2015/09/28/proposed-fre-amendment-removes-ancient-document-rule.

Written by: Jillianne Pierce

Articles and Online Editor, American Journal of Trial Advocacy

In modern litigation it is not uncommon to see trial lawyers use various forms of electronic evidence in court proceedings. As a result of the proliferation of digital information over recent decades, courts have gradually allowed the admission of many types of electronic documents including e-mail, online articles, Internet browser histories, and social media posts. However, because of the volume of unreliable information found on the internet, the Advisory Committee on Rules of Evidence has recently been faced with amending portions of the Federal Rules to limit the amount of electronic information that can be admitted into evidence.[1]

In early 2017, the Advisory Committee amended one rule in particular that could have been greatly impacted by such expansive Internet information. Rule 803(16), the Ancient Documents Rule, is an established exception to the hearsay rule.[2] The pre-amendment text of the rule allowed a document that was otherwise considered hearsay to be admitted into evidence for the truth of the matter asserted if the document was at least twenty years old and appeared authentic.[3] This long-standing rule has flown under the radar for many years and in the past has rarely been invoked.[4] In fact, research in 2014 revealed that the ancient documents rule had been raised in less than one hundred reported cases since the Federal Rules of Evidence were enacted.[5] However, in 2014 the Advisory Committee acknowledged this would not remain the case for long if the rule was not soon amended.[6]

On April 4, 2014, the Advisory Committee considered a possible amendment to the ancient documents rule based on suggestions that the expansion of electronic evidence would soon broaden this exception to the hearsay rule much more than the drafters ever intended.[7] Daniel J. Capra, the Advisory Committee’s reporter, drafted a memorandum addressing the significant problems that many courts might face as the Internet approaches its twenty-year anniversary.[8] Capra’s chief argument was that the purpose of the ancient documents rule would be undermined by the volume and ease of storage of electronically stored information (“ESI”) resulting from the growth of the Internet since the 1990s.[9]

Capra explained the original reasoning for the ancient documents rule was that after a lapse of twenty years or more, not only is there a shortage of evidence because it has been lost or destroyed, but any available eyewitness testimony is usually skewed and unreliable.[10] Old documents which can be found, on the other hand, have fewer risks of being misreported.[11] The original rule-makers found that there should be a hearsay exception for old documents because they are often much more reliable than any other evidence found after a passage of twenty years.[12] Capra asserted that the rule-makers, however, likely did not foresee the massive volume of unreliable Internet documents and other ESI that would eventually fall under the hearsay exception simply by virtue of their age.[13]

The Advisory Committee considered several drafting alternatives to correct these potential problems.[14] The first option they considered was to simply abrogate the rule altogether.[15] Capra’s memorandum explained that one could argue the ancient documents rule is flawed because it assumes a document is reliable merely because it is old.[16] Furthermore, because of the great potential for abuse of the rule due to ESI and the likelihood that much of the ESI which actually is reliable could fall under another hearsay exception, there is less justification for the rule to continue to exist.[17] A second option the Advisory Committee considered was to limit the ancient documents rule to hardcopy documents.[18] The rationale behind this option was that “the ancient documents exception may be thought to continue to play a useful role in certain kinds of litigation in which critical hardcopy documents are very old and impossible to qualify under other exceptions.”[19] Finally, the advisory committee considered adding a necessity requirement to the rule.[20] In this case, the hearsay exception would be limited to instances in which it is necessary to introduce the old evidence because there are no alternative ways the evidence can be admitted.[21] This option supports the idea that attorneys should first use any available more reliable ESI that could be admitted under other hearsay exceptions.[22]

The Advisory Committee was unable to reach a consensus on which drafting alternative would be the best choice at its April 2014 meeting.[23] The Committee determined that more factual information supporting a change was needed to proceed with an amendment.[24] At the Committee’s April 2015 meeting, the options were again discussed.[25] The proposal that the exception be limited to hardcopy documents drew no support because of the difficulty of distinguishing between hardcopy and ESI.[26] The Committee also agreed that adding a necessity requirement to the rule would be problematic because it would make the ancient documents rule too similar to the residual exception to the hearsay rule.[27] The Advisory Committee ultimately determined that the problems with the rule could not be fixed, and that it should be abrogated altogether.[28] A motion was unanimously approved that a proposal to abrogate Rule 803(16) be issued for public comment.[29]

The Advisory Committee received more than two hundred comments, which were almost universally opposed to abrogating the ancient documents rule.[30] In fact, a memorandum by the Committee’s reporter stated that, “[t]he public comment was the most one-sided, negative . . . comment[]” the Advisory Committee had ever received.[31] The memorandum noted that many of the comments claimed eliminating the ancient documents exception would mean eliminating extremely important documents in certain specific types of litigation.[32] Specifically, these types of litigation included “1) cases involving latent injuries such as toxic torts, especially asbestos; 2) environmental harms and cleanup cases; 3) claims by survivors of child sexual abuse against institutions that failed to prevent or ratified the abuse; 4) cases involving insurance coverage, in which ancient documents are offered to prove up the policy; and 5) land title disputes.”[33]

In response to adverse public comment, the Advisory Committee considered several alternatives to abrogating the rule.[34] Ultimately, the Committee determined the best alternative was to limit the exception to documents prepared before a specific date.[35] They suggested the ancient documents rule be amended to specify that “statements prepared prior to Jan. 1, 1998, and whose authenticity has been established, will not be excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.”[36] The Committee commented that although any cutoff date would have a “degree of arbitrariness,” 1998 was a fair date for addressing the rise of ESI.[37]

In accordance with the Advisory Committee’s proposal, on April 27th, 2017, the Supreme Court issued an order to amend Rule 803(16).[38] Unless Congress takes contrary action, the order will go into effect December 1, 2017 and govern all proceedings thereafter.[39] It will be interesting to see what effect, if any, the amendment will have on the operation of the ancient documents rule, and whether the states will choose to follow suit with their own state evidence rules in order to avoid an explosion of ESI in the courtroom.

[1] Advisory Comm. on Evidence Rules, Agenda Book, 101-113 (Apr. 4, 2014).

[2] Fed. R. Evid. 803(16).

[3] Advisory Comm. on Evidence Rules, Agenda Book, 101-113 (Apr. 4, 2014).

[4] Id. at 103.

[5] Id.

[6] Id. at 101-113.

[7] Id. at 101.

[8] Advisory Comm. on Evidence Rules, Agenda Book, 101-113 (Apr. 4, 2014).

[9] Id. at 105-106.

[10] Id. at 104.

[11] Id.

[12] Id.

[13] Id. at 105-06.

[14] Advisory Comm. on Evidence Rules, Agenda Book, 110-13 (Apr. 4, 2014).

[15] Id. at 110.

[16] Id.

[17] Id.

[18] Id. at 111.

[19] Id.

[20] Advisory Comm. on Evidence Rules, Agenda Book, 112 (Apr. 4, 2014).

[21] Id.

[22] Id. at 113.

[23] Advisory Comm. on Evidence Rules, Minutes, 3 (Oct. 24, 2014).

[24] Id.

[25] Advisory Comm. on Evidence Rules, Minutes, 3 (Apr. 17, 2015).

[26] Id.

[27] Id.

[28] Id. at 4.

[29] Id.

[30] Advisory Comm. on Evidence Rules, Agenda Book, 53-54 (Apr. 29, 2016).

[31] Id. at 61.

[32] Id. at 61-62.

[33] Id.

[34] Advisory Comm. on Evidence Rules, Committee Report, 3 (May 7, 2016).

[35] Id.

[36] Kenneth J. Treece, Preview of the 2017 amendments to the Federal Rules of Evidence, Legal News (Jan. 18, 2017), http://www.legalnews.com/detroit/1437571.

[37] Advisory Comm. on Evidence Rules, Committee Report, 3 (May 7, 2016).

[38] John G. Roberts, C.J. (Apr. 27, 2017), https://www.supremecourt.gov/orders/courtorders/frev17_d186.pdf.

[39] Id.

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