April 23, 2020 Practice Points

Older by the Day: “Ancient Documents” in the Internet Age

A December 2017 change to the rules of evidence adds the qualification that a document whose authenticity has been “established" must have been “prepared before January 1, 1998” to be considered “ancient.”

By David C. Kent

For most legal practitioners, the “ancient documents” exception to the hearsay rule is a bit of legal arcana. Seldom used and poorly understood, it is commonly applied to documents that most observers would consider “ancient,” e.g., century-old government reports regarding Indian reservations (Chemehuevi Indian Tribe v. McMahon), city directories from the 1800s (MMA Consultants 1, Inc. v. Republic of Peru), prefaces to books published in the mid-1800’s (G. & C. Merriam Co. v. Syndicate Pub. Co.), newspaper articles written more than half-a-century before the events at issue (Dallas County v. Commercial Union Assur. Co.), internal business memoranda from the 1930s (Threadgill v. Armstrong World Industries, Inc.), decades-old personal correspondence (Wells v. Rouleau), unpublished scientific research articles (George v. Celotex Corp.), etc.

At common law, 30 years was the accepted age requirement for considering a document “ancient.” Federal Rule of Evidence 803(16) shortened that time to 20 years. This one-third reduction in the age requirement occasioned little fanfare and had no discernible effect on the jurisprudence.

With the advent of the internet age, however, new concerns have arisen. Perhaps presaging the epithets "fake news" and "post-truth," commentators began raising concerns several years ago that the ancient documents hearsay exception could become an ever-widening gateway for introducing into evidence patently unreliable information found on the internet, based on nothing more than the fact that it was at least 20 years old. This was concerning because, as the Judicial Conference Advisory Committee on Evidence Rules noted, “no showing of reliability needs to be made to qualify under the [ancient documents] exception.”

After consideration and study of these concerns, the Supreme Court, acting on the recommendation of the Judicial Conference Advisory Committee on Evidence Rules, amended Rule 803(16) effective December 1, 2017, to add the qualification that a document, whose authenticity has been “established,” must have been “prepared before January 1, 1998” to be considered “ancient.” While any cut-off date might seem arbitrary, 1998 was chosen because of its proximity to the spread of the Information Age.

FRE 901(b)(8) provides an illustrative, though not exclusive, method of proving authenticity: the document or data compilation (1) is in a condition that creates no suspicion about its authenticity; (2) was in a place where, if authentic, it would likely be; and (3) is at least 20 years old when offered. It must be emphasized that these three steps are illustrative only. Fundamentally, Rule 901(a) only requires proof “sufficient to support a finding that item is what the proponent claims it is,” a burden that courts almost uniformly find to be slight. (United States v. Mebrtatu.) In this connection, FRE 902(12) and (13) were added in 2017 to provide methods for self-authenticating electronic records.

The amendment was not without its critics. The principal objection was that the amendment was unnecessary because “the sky was not falling” as the amendment’s proponents claimed. The chief concern behind the amendment was the conviction that digital hearsay, regardless of its age, was inherently more suspect than hearsay committed to paper. It was thought that the “ancient” status of a document made it reliable because it was unlikely to have been created or preserved with litigation in mind.

While that reasoning may have had some validity in the days of paper, however, skeptics were not nearly so sanguine about its continued vitality in the digital age. Particularly when dealing with cases that have long litigation “tails,” such as latent disease, environmental, or sexual abuse claims, it is not difficult to imagine some authors writing with an eye to the future as well as the present. Further, the ease of storing digital information makes the long-term preservation of evidence more likely. Thus, the rationale for equating reliability with age seemed tenuous at best, given the ease of creating and the exponential growth in the volume of electronic information, and the justification for setting a specific date for acquiring “ancient” status seemed clearer.

Opponents also argued the amendment was unnecessary because Rule 805's prohibition on secondhand hearsay (“double” or “hearsay within hearsay”) would prevent the ancient documents exception from opening the door to all manner of unreliable, unprovable or demonstrably false information. That is, while firsthand statements made by the author of the ancient document or adopted by the person signing the document based on personal knowledge would be admissible, statements attributed to someone else would be secondhand and inadmissible unless they qualified on their own merits through another hearsay exception.

This reliance on Rule 805 is the majority rule in both state and federal courts, but it is by no means uniform.

As of this writing, a Westlaw search has revealed no cases that have addressed the import of the 2017 amendment. Perhaps there will be none, because the January 1, 1998, cut-off date will be treated as a “bright line” standard: the document either is or is not “ancient.” If no problems arise, however, that may be a form of proof that the amendment served its purpose.

David C. Kent is counsel with the Dallas, Texas, office of Faegre Drinker Biddle & Reath, LLP.


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