I want to start with a personal story. I graduated high school in 1997. Somewhere, probably with one of my parents, there is a floppy disk containing every paper I wrote my senior year. (I suspect it is alongside the lost “Christmas 1985” tape, but I digress.)
I tell this story to raise a question that courts and legislatures must soon address – have the statements in those lost files somehow become more reliable in the past year? Because the Rules of Evidence certainly presume so. And, without changes, such as those likely coming to the federal rules in December, this will create evidentiary problems in coming years.
It’s not my term papers that are at issue; it’s the terabytes of other hearsay statements that recently became, or will soon become, admissible under the “ancient documents” exception. As a brief refresher, Rule 803(16) of the Minnesota and current Federal Rules of Evidence provides an exception to the hearsay rule, permitting introduction of “a statement in a document that is at least 20 years old and whose authenticity is established.” The exception is premised on the notion that “ancient” statements are more reliable because they were both written down and usually made before the litigated dispute arose. It is also a matter of necessity. When an issue is 20 years old, witnesses and business records (which have their own hearsay exception) are hard to find. Besides, if a document survives more than 20 years, it’s reasonable to assume the contents are important and trustworthy.
But then came electronically stored information (ESI). Unlike hardcopy documents, ESI is cheap and easy to store, and mountains of old emails, web pages and other ESI, filled with inadmissible hearsay statements, are now on the verge of qualifying for the ancient-document exception (if they haven’t qualified already). The exception makes little sense with those documents. Statements in ESI do not become more reliable with time. And age certainly isn’t a sign of importance; that my term papers made it 20 years says more about my hoarder tendencies than the papers’ contents. On top of that, documents we generally presume trustworthy, such as business records or statements of existing conditions, are already admissible under other hearsay exceptions, regardless of age. So, the ancient-document exception will be used only on statements that, until their 20th birthday, were deemed too untrustworthy to admit.
