The sheer volume of electronic data in the digital age is continually driving changes to the rules of federal practice. So be aware that as of Friday, December 1, 2017, two new amendments to the Federal Rules of Evidence (to Rules 803 and 902) will limit the admissibility of electronically stored information (ESI) under the “ancient documents” exception to the hearsay rule and allow for self-authentication of certain types of ESI.
These two amendments were formulated in 2015 by the Judicial Conference Advisory Committee on Evidence Rules and take effect on December 1 of this year. Here are the changes:
Amendment to Federal Rule of Evidence 803: The “ancient documents” hearsay exception in Rule 803(16) will be amended as of December 1 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.
The Committee’s reasoning for this is that the ancient documents exception “should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information . . . Given the exponential development and growth of electronic information since1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI….”
When this rule was first adopted it applied to hardcopy documents since electronic data did not exist. But if the rolling 20-year cut off were left in place, every year now the rule would allow in a deluge of electronic data, and with it the risk of self-serving statements offered by parties immune from a hearsay objection.
Amendment to Federal Rule of Evidence 902: This rule concerns self-authenticating documents. As of December 1, it will be amended by the addition of paragraphs (13) and (14), providing that some items of evidence are self-authenticating and require no extrinsic evidence of authenticity to be admitted.
Paragraph (13) applies to records generated by a computer regarding its internal systems, and paragraph (14) regards user-created files stored on a computer. Quoting the Committee, this concerns records “generated by an electronic system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12),” as well as data “copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements….”
If a proponent provides notice of its intent to offer the electronic document, and makes the record and the certification of authenticity available for inspection, the burden shifts to the opponent to challenge the document’s authentication or admissibility.