Ancient Documents, Hearsay and Upcoming Changes

Controlling the burgeoning costs of e-discovery was a prime driver behind the 2015 amendments to the Federal Rules of Civil Procedure. Under the radar during the same time period, there was activity by the Judicial Conference Advisory Committee on the Federal Rules of Evidence to add to the list of self-authenticating evidence under FRE 902. This brought little commentary because the changes proposed were seemingly not controversial.

However, proposed changes to the FRE 803(16) hearsay exception for ancient documents (those that would be excluded as hearsay except for the fact that they are older than 20 years) were controversial. Attorneys specializing in environmental cases, toxic torts, child sexual abuse cases and other areas presented strong arguments in favor of retaining the ancient document exception. They claimed that these documents were often the only proof of institutional actions and knowledge available. Negative comments were even received from eight U.S. Senators, indicating that abrogating this rule was undermining the will of Congress in certain federal litigation.

The Committee decided to allow the exception in all cases in which it was currently being used, but eliminate it going forward. Thus, January 1, 1998, was a “fair date for addressing the rise of ESI.” Beginning on December 1, 2017, the rule will define statements in ancient documents as statements in a document that was prepared before January 1, 1998, and whose authenticity is established.

E-discovery teams should become familiar with, and leverage, these new FRE amendments.