Serial: 232109 

### IN THE SUPREME COURT OFMISSISSIPPI No. 89-R-99002-SCT



### INRE: MISSISSIPPIRULESOF EVIDENCE

EN BANC ORDER 

# FILED JUN 18 

## 2020 OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS

Before the en bane Court is the Motion to Amend Certain Mississippi Rules of Evidence (Motion No. 2019-1929), filed by the Supreme Court ofMississippi's Advisory Committee on Rules. The Committee proposes amending Rules 502, 803(6)-(8), 803(10), 803(16), 804(b)(3)(B), and902(12)-(13)oftheMississippiRulesof Evidence.Themotionwasposted for comment from May28, 2019, to June 27, 2019. Afterdue consideration, we find that the motion shouldbe granted as set forth in the attached Exhibit A. ITIS THEREFOREORDEREDthattheMotionto AmendCertainMississippiRules ofEvidence is granted as set f01ih in the attached Exhibit A. The amendments shall be effective on July 1, 2020. ITIS FURTHERORDEREDthatthe Clerkofthis Courtmust spreadthis orderupon the minutes of the Court and send a certified copy to West Publishing Company for publication inthe advance sheets of

### Southern Reporter, Third Series (Mississippi Edition),

### and in the next edition ofthe Mississippi Rules of Court. SO ORDERED, this the~day ofJune,

CHAEL K. RANDOLPH, HIEF JUSTICE FOR THE COURT

AGREE: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ. AGREE IN PART: KITCHENS AND KING, P.JJ.

2Rule 502. Lawyer-Client Privilege (a) Definitions. In this rule: EXHIBITA

(1) "Client" means a person, public officer, corporation, association, or any other public orprivate organization or entity: (A) to whom a lawyerrenders professional legal services; or (B) who consults a lawyer with a view to obtaining professional legal services from the lawyer. (2) "Client's representative" means: (A) one authorized to: (i) obtain professional legal services onbehalfofthe client; or (ii) act onbehalfofthe client onthe legal advice rendered; or (B) an employee ofthe client with information the lawyer needs to render legal services to the client. (3) "Lawyer" means a person authorized

- or who the client reasonably believes is authorized

- to practice law in any state ornation. (4) "Lawyer's representative" means one employed bythe lawyer to assist the lawyer in rendering professional legal services. (5) A communication is "confidential" ifnot intended to be disclosed to third persons otherthan those: (A) to whom disclosure is made to further rendition ofprofessional legal services to the client; or (B) reasonably necessary to transmit the communication. {6} "Lawyer-clientprivilege" means the protection that applicable law provides for confidential lawyer-client communications. (7) "Work-product protection" means the protectionthat applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation oflitigation or for trial.

(e) Limitations on Waiver. The following provisions apply, in the circumstances set out, to disclosure ofa communication or information covered bythe lawyer-client privilege or work-product protection. (1) 

### Disclosure Made in a Mississippi Proceeding: Scope ofa Waiver. Whenthe disclosure is made in a Mississippi proceeding and waives the lawyer-client privilege orwork-product protection, the waiver extends to an undisclosed communication or information in a Mississippi proceeding only if: {A) the waiver is intentional; {B) the disclosed andundisclosed communications or information concern the same subject matter; and
1(C) they ought in fairness to be considered together. (2) 

### InadvertentDisclosure. When made in a Mississippi proceeding, the disclosure does not operate as a waiver in a Mississippi proceeding if: (A) the disclosure is inadvertent: (B) the holder ofthe privilege orprotection took reasonable steps to prevent disclosure; and (C) the holderpromptly took reasonable steps to rectify the error, including (if applicable) following MRCP 26(b)(6)(B) [Restyled effective July 1, 2016: amended effective July I, 2020.]

Advisory Committee Note The language ofRule 502 has been amended as part ofthe general restyling ofthe Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Subdivision (a) defines pertinent terms: who is a lawyer, who is a client, who are their representatives. These definitions clarify Mississippi law. The only existing statute relating to attorney-client relationship is M.C.A. § 73-3-37 which, among other things, includes a provisionthat one ofan attorney's duties is "to maintain inviolate the confidence and, at every peril to themselves, topreserve the secrets oftheir clients

...." The term "client" includes individuals, corporations and associations, and governmental bodies. Mississippi decisional law is in accord with Rule 502(a)(l) in that the privilege protects communications between an attorney and one who consults him with a view towards retaining him, but who eventually decides not to employ him. 

### See Perkins v. Guy, 55 Miss. 153 (1877). The services providedbythe attorney must be legal services in order to be cloaked with the privilege. Services which are strictlybusiness or personal do not enjoythe privilege. 

### See McCormick, 

### Evidence, 92. The Mississippi court has not recognized the privilege in those cases in which the attorney is merely a scrivener. 

### Rogers v. State, 266 So. 2d 10 (Miss. 1972). Rule 502(a)(2) defines representatives ofa client. This takes on particular significance in regards to corporate clients. This group ofemployees who maybe a client's representatives is larger than the "control group". The "control group" was formerly one ofthe leading tests for determining which corporate employees had the benefit ofthe privilege. 

### See Upjohn Co. v. UnitedStates, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), in which the Supreme Court construed the language ofthe Federal Rules ofEvidence as invalidating the control group test and so rejected it.
2The definition oflawyer in Rule 502(a)(3) covers any person licensed to practice law in any state ornation. It includes persons who are not lawyers butwhomthe client reasonably believes are lawyers. The definition ofrepresentative ofthe lawyer in Rule 502(a)(4) is broadly designed to include the lawyer's employees and assistants. 

### It also includes experts that the lawyer has hired to assist in the preparation ofthe case. Itdoes not extend to an expert employed to be a witness. This conforms to existing Mississippi practice. Dictum in Wilburn v. Williams, 193 Miss. 831, 11 So. 2d 306 (1943), indicated thatthe court might have followed such a definition ifthe issue was before it. A communication which takes place in the presence ofa third party is not confidential unless it complies with the statement in Rule 502(a)(5). 

### Ifthe third party does not fall within these categories in this subdivision, his presence deems the communication notto be confidential. See Taylor v. State, 285 So. 2d 172 (Miss. 1973); Ferrel v. State, 208 Miss. 539, 45 So. 2d 127 (1950). The test for confidentiality is intent. Thus, a communication made in public cannot be considered confidential. Intent can be inferred from the particular circumstances. Rule 502(a)(6) and (7) define "lawyer-clientprivilege" and "work-product protection," but make no attempt to alter the law on whether a communication or information is protected under the lawyer-clientprivilege or work-product protection as an initial matter. Subdivision (e) governs the scope ofwaiver and the effect of inadvertent disclosure. Subdivision (b) is a statement ofthe rule. The rule is drafted in such a way as to prevent eavesdroppers from testifying about the privileged communication. See the Advisory Committee Notes to DeletedFRE 503 [which is identical to U.R.E. 502(b)]. The privilege extends to statements made in multiple party cases in which different lawyers represent clients who have common interests. Each clienthas a privilege as to his own statements. The FRE Advisory Committee Notes to DeletedRule 503 state thatthe rule is inapplicable in situations where there is no common interest to be promoted by ajoint consultation or where the parties meet on a purely adversary basis. Subdivision (b) provides that the privilege includes lawyerto client communications as well as client to lawyer communications. See Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). Subdivision (c) establishes that the privilege belongs to the client orhis personal representative. Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). The lawyer's claim is
3limited to one made onbehalfofthe client; he himselfhas no independent claim. 

### See UnitedStates v. Jones, 517 F.id 666 (5th Cir.1974). Subdivision (d) excludes certain instances from the privilege. Rule 502(d)(l) does not extend the privilege to advice in aid ofa future crime or fraud. Theprovision thatthe client knew orreasonably should have known ofthe criminal or fraudulent nature ofthe act is designed to protectthe client who is mistakenly advised that a proposed action is lawful. 

### See McCormick, 

### Evidence, 75. Existing law in Mississippi onthis point is unclear. Dicta in two 19th century cases suggest that the privilege did apply to protect statements regarding the client's motives in fraudulent schemes. 

### See Parkhurstv. McGraw, 24 Miss. 134 (1852); 

### Lengsfieldand Co. v. Richardson andMay, 52 Miss. 443 (1876). Additionally, the federal appellate court in

### Hyde Construction Co. v. Koehring Co., 455 F.2d 337 (5th Cir. 1972), has determined that the Mississippi courts would allow the privilege when an attorney, acting as the client's alter ego, commits a tort or fraud. It is uncertain, ifthis is an accurate reflection ofthe scarce Mississippi law onthe point, but clearly under Rule 502(d)(l) the privilege in such a case would not apply. Rule 502(d)(2) permits no privilege when the adversaries in a case claim the privilege from the same deceased client. The general rule is thatthe privilege survives death and maybe claimedby the deceased's representative. However, this rule makes no sense in some cases; for instance, inwill contests when various parties claim to be the representative ofthe decedent. Only at the end ofthe litigation will the courthave determined who is the deceased's successor, and until it has made that determination, neitherparty is entitledto invoke the privilege. Rule 502(d)(3) permits the use ofstatements made between a lawyer and his client when a controversy later develops betweenthem, such as in a dispute over attorney's fees or legal malpractice. Rule 502(e) addresses two main issues. The first is the effect ofcertain disclosures ofmatters protected bythe lawyer-client privilege or as workproduct. The second is the concern over otherwise unnecessary litigation costs incurredto protect against inadvertent waiver

- especially in cases involving electronic discovery

- that often bear no proportionality to what is at stake inthe case. 

### See S. Saltzburg, M. Martin, & D. Capra 1

### FederalRules o(EvidenceManual§ 502.02(1] (11th ed. 2016) ("[T]he common-law rules onwaiver ofprivilege and workproduct were responsible for rising costs of discovery, especially discovery ofelectronic information. In complex litigationthe lawyers spend significant amounts oftime and effort to preserve privilege and work product by screening protected documents from discovery

.... Moreover, an enormous amount ofexpense was being put into document production in orderto protect against inadvertent disclosure ofprivileged information, because the producing party risked a ruling that even a mistaken disclosure can result in a subject matter waiver. [L]awyers' fear ofwaiver led to extravagant claims ofprivilege, i.e., privilege claims often covered
4non-privileged material because lawyers were concerned about waiver ifthey underclaimed"). Rule 502(e)(l) provides that an 

### intentional disclosure, ifa waiver, generally results in a waiver only ofthe communication orinformation disclosed; a subject matter waiver (ofeither privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure ofrelated, protected information, in orderto prevent a selective and misleading presentation ofevidence. 

### See Rule 502(e)(2). The language concerning subject matter waiver

- "oughtin fairness"

- is taken from Rule 106, because the animating principle is the same. Underboth rules, a partythat makes a selective, misleadingpresentation that is unfair to the adversary opens itselfto a more complete and accurate presentation. An 

### inadvertent disclosure ofprotected information can 

### never result in a subject matter waiver. UnderRule 502(e)(2)(B), considerations bearing onthe reasonableness ofa producing party's efforts include the number ofdocuments to be reviewed and the time constraints for production. 

### See Paul W. Grimm, LisaYurwitBergstrom 

### & MatthewP. Kraeuter, 

### FederalRule o(Evidence 502: Has ItLived Up to Its Potential?, 17 Rich. J.L. & Tech. 8, 

## ,r 43 (2011) ("Determining whetherreasonable precautions have beentaken cannotbe done in a vacuum, and considerations ofhow much is at stake inthe litigation and the resources ofthe partythat inadvertently producedthe privileged orprotected information are both appropriate andnecessary ...."). A partythat uses advanced analytical software applications and linguistic tools in screening for privilege and work product may effectively protect against a finding ofwaiver. 

### See Kandel v. Brother International Corp

.. 683 F.Supp.2d 1076 (C.D.Cal. 2010) (Party hired a consultantto scanits servers and archives and put documents into a database that couldbe reviewed. Counsel provided consultant and document review team with a protocol containing specific instructions on designating protected materials). 

### But see Peterson v. Bernardi. 262 F.R.D. 424 (D.N.J. 2009) (party tookminimal steps to protect against inadvertent disclosure, and general statementthat a privilege review was done, without any supporting details, was entitled to little weight). The rule does 

### notrequire the producing partyto engage in a post-productionreview, as thatwould increase the cost ofdiscovery and impose the very thing the rule seeks to avoid. Butthe rule does require the producing partyto follow up on any obvious indications that a protected communication or information has beenproduced inadvertently. UnderRule 502(e)(2)(C), a party must act promptly 

### andreasonably once it discovers its mistaken disclosure. While a party is not requiredto check after production to determine whether a mistake has beenmade, it must seek the return ofthe material once the party is on notice ofthe error. 

### See S. Saltzburg, M. Martin, & D. Capra 1 

### FederalRules o(Evidence Manual§ 502.02[3J[d] (11th ed. 2016) (An "innocentrecipient ofmistakenly disclosed confidential information could be put at a disadvantage ifthe disclosing party would sit on its rightto get the informationback. As time passes, the
5recipient could be entering the information into its own databases, providing it to its own experts, using it to inform pleadings, and so on. As time passes, it gets more costlyto unring the bell struckby mistakenly disclosed information.") Rule 502( e)( 4) enables the use ofconfidentiality orders to limit the costs of privilege review, especially important in cases involving electronic discovery. The rule contemplates enforcement of"claw-back" and "quick peek" arrangements as a way to avoid the excessive costs ofpre-production review for privilege and work product. 

### See Zubulake v. 

### UBS WarburgLLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003). For an example ofa Rule 502(e)(4) order, 

### see S. Saltzburg, M. Martin, & 

### D. Capra 1

### FederalRules of Evidence Manual§ 502.02[3][g] (11th ed. 2016). A confidentiality order can cover intentional disclosures as well as mistaken ones. Under Rule 502(e)(5), an agreement on the effect ofdisclosure is binding only on the parties to the agreement; ifincorporated into a court orderunder Rule 502(e)(4), it is binding in other proceedings as well. ["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling; amended effective July 1, 2020.]

Rule 803. Exceptions to the Rule Against Hearsay

- Regardless ofWhether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless ofwhether the declarant is available as a witness:

(6) 

### Records of aRegularly ConductedActivity. A record ofan act, event, condition, opinion, or diagnosis if: (A) the record was made at or nearthe time by

- or from information transmitted by

- someone with knowledge; (B) the record was kept in the course ofa regularly conducted activity ofa business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice ofthat activity; (D) all these conditions are shown bythe testimony ofthe custodian or another qualified witness, orby a certification that complies with Rule 902(11); and (E) neitherthe opponent does not show that the source ofinformation fl0F orthe method or circumstances ofpreparation indicate a lack oftrustworthiness. (7)

### Absence of aRecordof a Regularly ConductedActivity. Evidence that a matter is not included in a record described in paragraph (6) if:
6

### (A) the evidence is admitted to prove that the matter did not occur or exist; (B) 

### a record was regularly kept for a matter ofthat kind; and (C) neither the opponent does not show thatthe possible source ofthe information Her 

### or other circumstances indicate a lack oftrustworthiness. (8) 

### PublicRecords. A record or statement ofa public office if: (A) it sets out: (i) 

### the office's activities; (ii) 

### a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (iii) 

### in a civil case or against the prosecution in a criminal case, factual findings from a legally authorized investigation; and (B) 

### neither the opponent does not show that the source ofinformation Her

### or other circumstances indicate a lack oftrustworthiness.

(10)

### Absence of aPublicRecord. Testimony- or a certification under Rule 902

- that a diligent search failed to disclose a public record or statement it !A} 

### the testimony or certification is admitted to prove that:- 

### ill the record or statement does not exist; or .{ill 

### a matter did not occur or exist, ifa public office regularly kept a record or statement for a matter ofthat kind: and (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice ofthat intent at least 14 days before trial, and the defendant does not object in writing within 7 days ofreceiving the notice

- unless the court sets a different time for the notice orthe objection.

(16) 

### Statements inAncientDocuments. A statement in a document that is at least 20 years old that was prepared before January 1, 1998, and whose authenticity is established.

[Restyled effective July 1, 2016; amended effective July 1, 2020.]

Advisory CommitteeNote

7

### (6) 

### Records of

### Regularly Conducted Activity. Rule 803(6) is an expansion of the common law business records exceptionused inMississippi. The records mustbe those ofa regularly conductedbusiness activity; however, the definition ofbusiness is broaderthanpre-rule practice inMississippi permitted. Itincludes records ofnon-profit institutions and associations. 

### It is important to note that the custodian as well as other qualified witnesses may testify. Thus, it is not necessary to call orto account for all participants who made the record. However, the source ofthe material mustbe an informant with knowledge who is acting in the course ofthe regularly conducted activity. This is exemplifiedby the leading case of

### Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) which is still the applicable lawtoday under the rule. That case heldthat a police report which contained information obtained from a bystanderwas inadmissible; the officer qualified as one acting in the regular course ofa business, but the informant did not. Rule 803(6) specifically includes diagnoses and opinions as proper subjects of admissible entries, as well as the traditionally admissible entries pertainingto acts, events and conditions. The rule calls for the exercise of judicial discretion ifthere is an indication ofa lack oftrustworthiness. This permits the courtto take into account the motivation ofthe informant. Rule 803(6) provides that ifthe proponenthas established the statedrequirements ofthe exception

- regularbusiness with regularly keptrecord, source with personal knowledge, record made timely, and foundation testimony or certification

- then the burden is onthe opponentto show a lack oftrustworthiness. Itis appropriate to impose the burden ofproving untrustworthiness on the opponent, as the basic admissibility requirements tendto guarantee trustworthiness inthe first place andthus suffice to establish a presumptionthatthe record is reliable. "[Bly showing that the records regularly recordregularly conducted activity, the proponenthas made a sufficient showing that the records are trustworthy enoughto be admissible. The proponent should not have to make an extra affirmative showing oftrustworthiness." Saltzburg, Martin, & Capra, Federal Rules ofEvidence JVIanual, vol. 4, § 803.02[7][g] (11th ed.) (2017). The opponent, inmeeting its burden, is not necessarilyrequired to introduce affirmative evidence ofuntrustworthiness. For example, the opponent might argue that a record was prepared in anticipation oflitigation andis favorable to the preparing party without needing to introduce evidence onthe point. The Supreme Courthas noted that the use ofthe term "'indicates' certainly imposes less ofa burdenthan, say, 'requires' or 'necessitates."'

### Rowlandv. CaliforniaMen's Colony, 506 U.S. 194,200 0993). A determination ofuntrustworthiness necessarily depends onthe circumstances. The reference to self-authentication under Rule 902(11) is to confirm that the predicate for records under this exception may be by affidavit in appropriate cases.
8(7) Absence 

### ofEntry in 

### Records Kept in 

### Accordance with the Provision of Paragraph (6). A record's failure to mention a matterwhich would ordinarilybe contained in it is admissible to prove the nonexistence ofthe matter. This is innovative in Mississippi. Traditional Mississippi courts have admitted evidence ofthe absence of matter in the record only inthe cases ofpublic records. While it has beenunclear whether the absence ofinformation was even hearsay, some courts have treated it as such and have found no exceptionto apply. Rule 803(7) settles the question ofadmissibility by clearly making the absence factor an exception. Rule 803(7) provides that ifthe proponent has established the statedrequirements ofthe exception- set forth inRule 803(6)-thenthe burden is on the opponentto show a lack oftrustworthiness. Rule 803(7) thus maintains consistency withthe trustworthiness clause ofRule 803(6). (8) Public Records and Reports. Public records and reports have been admissible in evidence as an exception to the hearsayrule. Countless statutoryprovisions in Mississippi formerly provided for the admission ofpublic records. Additionally, there was similar development in the common law. 

### Ludlow v. Arkwright-BostonMfrs. Mut. Ins. Co., 317 So. 2d 47 (Miss 1975). Subparagraphs (A)(i) and (A)(ii) are similarto Mississippi practice. The rule makes no distinctionbetween state and local records. Subparagraph (A)(iii) adds the new elementto the exception as traditionally applied in Mississippi. Subparagraph (A)(iii) provides that some investigative reports may be treated as hearsay exceptions. To be admissible they mustbe factual findings made in an investigation which was conducted pursuantto lawful authority. Opinions and conclusions contained in such reports shouldbe excluded. The experience in otherjurisdictions which have adopted an identical rule has been thatjudges are exercising great caution in admitting these reports. Oftenthey are being excluded ifbased on hearsay orthe opinions ofthose not involved inthe preparation ofthe report. The rule expressly givesjudgesthe discretion to exclude such reports. Rule 803(8) provides that ifthe proponent has establishedthe stated requirements ofthe exception

- preparedby a public office and setting out information as specified in the Rule

- thenthe burden is onthe opponent to show a lack oftrustworthiness. It is appropriate to impose the burden ofproving untrustworthiness onthe opponent. as the basic admissibility requirements tendto guarantee trustworthiness inthe first place and thus suffice to establish a presumptionthat the record is reliable. See Saltzburg. Martin. & Capra. Federal Rules ofEvidence Manual, vol. 4. § 803.02[9J[a] 01th ed.) (2017) ("Because ofthe strong presumption ofreliability accorded to public reports. the burden ofproving untrustworthiness is borne by the party seeking exclusion."); 

### Ellis v.
9

### InternationalPlaytex. Inc., 745 F.2d 292, 301 (4th Cir. 1984) (Public records rightly carry a presumption ofreliability, hence it is up to the opponent to "demonstratewhy a timetested and carefully consideredpresumption is not appropriate."). Rule 803(8) thus maintains consistency with the trustworthiness clause ofrule 803(6). The opponent, in meeting its burden, is notnecessarily required to introduce affirmative evidence ofuntrustworthiness. For example, the opponent might argue that a record was prepared in anticipation oflitigation and is favorable to the preparing party without needing to introduce evidence on the point. The Supreme Courthas noted that the use ofthe term "'indicates' certainly imposes less ofa burdenthan, say, 'requires' or 'necessitates."' 

### Rowlandv. CaliforniaMen's Colony, 506 U.S. 194, 200 (1993). A determination ofuntrustworthiness necessarily depends onthe circumstances. Even when admissible, public records under Subparagraph (A)(iii) may only be used in civil cases and in criminal cases on behalfofa defendant against the state. To permit the state to use such reports against a defendant would be to create confrontation rights problems.

(10) Absence ofPublic Record or Entry. Rule 8Q3(10) is also similarto pre rule Mississippi lav,r. 

### See, e.g., JVI.C.A. 

### § 13 1 83 (repealed effeetive July 1, 1991). \¥hile the Mississippi statute formerly provided for evidenee in the form ofa eertifieation, Rule 803(10) gives the possibility ofa seeond form, i.e., oral testimoRy ofthe seareh. Rule 803(10) permits proofby oral testimony or a certificate. For criminal cases, subparagraph (B) encompasses the requirements of

### Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), byincorporating an approved notice and demand procedure. 

### See also Conners v. State. 92 So.3d 676 (Miss. 2012). The 

### Melendez-Diaz Court declared that, consistent with the Confrontation Clause, the prosecutor may introduce a testimonial certificate against an accused who is given advance notice and does not timely demand the presence ofthe official who prepared the certificate.

(16) Statements in Ancient Documents. The ancient documents rule is a traditionally recognized exception in Mississippi. Underthis rule the eommon law period oftime is redueed to a minimum oftwenty years. The exception is limited to statements in documents prepared before January 1, 1998, due to the risk that the exception could otherwise be used as a vehicle to admit vast amounts ofunreliable electronically stored information (ESI). Giventhe exponential development and growth ofelectronic information since 1998, the hearsay exception for ancient documents hadbecome a 10

### possible open door for large amounts ofunreliable ESL as no showing ofreliability needs to be made to qualify under the exception. In certain cases - such as cases involving latent diseases and environmental damage

- parties must rely on hardcopy documents from the past. The ancient documents exception remains available in such cases for documents prepared before 1998. The need to admit old hardcopy documents produced after January 1, 

### 1998, should decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many ofthese ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. AndRule 803(24) canbe usedto admit old documents upon a showing of reliability-which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events. The limitation ofthe ancient documents exception is not intended to raise an inference that 20-year-old documents are, as a class, unreliable, orthat they should somehow not qualify for admissibilityunder Rule 803(24). Finally, many old documents can be admitted for the non-hearsay purpose ofproving notice, or as party-opponent statements. The limitation ofthe ancient documents hearsay exception is not intendedto have any effect on authentication ofancient documents. The possibility ofauthenticating an old document under Rule 901(b)(8)

- or under any ground available for any other document

- remains unchanged. A party will often offer hardcopy that is derived from ESL A good deal ofold information in hardcopy has been digitized or will be so inthe future. Under Rule 803(16), a document is "prepared" when the statement proffered was recorded in that document. For example, ifa hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy ofthat document, the date ofpreparation is 1995 even though the scan was made long after that

- the subsequent scan does not alter the document. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, ifthe content ofthe document is itself 

### altered after the cutoffdate, then the hearsay exception would not apply to statements that were added in the alteration.

[Amended July 1, 2009; "Advisory CommitteeNote" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling: amended effective July 1, 2020.]

11

### Rule 804. Exceptions to 

### the Rule Against Hearsay

- When the Declarant 

### Is Unavailable 

### as a Witness

(b) The Exceptions. The following are not excludedby the rule against hearsay ifthe declarant is unavailable as a witness:



### (3) 

### StatementAgainstInterest. A statement that: (A) a reasonable person in the declarant's position would have made only ifthe personbelieved it to be true because, when made, it was so contrary to the declarant's proprietary orpecuniary interest orhad so great a tendency to invalidate the declarant's claim against someone else orto expose the declarantto civil or criminal liability; and (B) is supportedby corroborating circumstances that clearly indicate its trustworthiness, ifit is offered in a criminal case as one that tends to expose the declarant to criminal liability aad is offeretl to eJrnulpate the aeeused.



### Advisory Committee Note

(b)(3) 

### StatementAgainstInterest. Rule 804(b)(3) expands the common law exception ofdeclaration against interest. Traditionally, courts have recognized two declarations against interest, pecuniary and proprietary. The rule extends the exception to declarations against penal interest onthe theory that such declarations are reliable. No reasonable person would make such a statement and invite possible criminal prosecution ifthe statement were not true. Subparagraph (b)(3)(B) is eoneemed withhears&)' whieh ineulpates the tleelarant but eJrnulpates the eriminal defendant. Unless sueh a statement eaabe eorroboratetl as reliable, it 1

### Nill be eJrnlutled. provides that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases. A unitary approach to declarations against penal interest assures boththe prosecution andthe accused thatthe Rule will not be abused and that onlyreliable hearsay statements will be admitted underthe exception. The Rules does not address the use ofthe corroborating circumstances for declarations againstpenal interest offered in civil cases.

12In assessing whether corroborating circumstances exist. the credibility ofthe witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. Tobase admission or exclusion ofa hearsay statement onthe witness's credibility would usurp the jury's role ofdetermining the credibility oftestifying witnesses.

[Amended effective July 1, 2009, to update citations and add subsection (b)(6); amended effective December 1, 2015, to update subsection (a)(5); "Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling: amended effective July 1, 2020.]



### Rule 902. Evidence That 

### Is Self-Authenticating The following items ofevidence are self-authenticating; they require no extrinsic evidence ofauthenticity in orderto be admitted:

02) 

### Certified Records Generated by 

### an Electronic Process or 

### System. A record generated by an electronic process or system that produces an accurate result. as shown by a certification ofa qualified person that complies withthe certification and notice requirements ofRule 902(11). 

### 03) 

### Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device. storage medium. or file. ifauthenticated by a process ofdigital identification. as shown by a certification ofa qualified person that complies with the certification and notice requirements ofRule 902(11).
[Restyled effective July 1, 2016; amended effective July 1, 2020.] 

### Advisory Committee Historical 

### Note

Advisory Committee Note

1302) CertifiedRecords Generated by an Electronic Process or System. Rule 902(12) sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony ofa foundation witness. As withthe provisions on business records in Rules 902(11), the expense and inconvenience ofproducing a witness to authenticate an item ofelectronic evidence is often unnecessary. It is oftenthe case that a party goes to the expense ofproducing an authentication witness, andthen the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. Rule 902(12) provides a procedure under whichthe parties can determine in advance oftrial whether a real challenge to authenticity will be made, and can then plan accordingly. Nothing in Rule 902(12) limits a party from establishing authenticity ofelectronic evidence on any ground provided inthese Rules, including throughjudicial notice where appropriate. A proponent establishing authenticity underthis Rule must present a certification containing information that would be sufficient to establish authenticity were that informationprovided by a witness at trial. Ifthe certificationprovides information that would be insufficient to authenticate the record ifthe certifying persontestified, then authenticity is not established under this Rule. The Rule specifically allows the authenticity foundation that satisfies Rule 90l(b)(9) to be established by a certification rather than the testimony ofa live witness. The reference to the "certificationrequirements ofRule 902(11)" is onlyto the procedural requirements for a valid certification. There is no intent to require, orpermit, a certification under this Rule to prove the requirements ofRule 803(6). Rule 902(12) is solely limited to authentication, and any attemptto satisfy a hearsay exception must be made independently. · A certification under this Rule can establish only that the proffered item has satisfiedthe admissibility requirements for authenticity. The opponentremains free to object to admissibility ofthe proffered item on other grounds

- including hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiffin a defamation case offers whatpurports to be a printout ofa webpage onwhich a defamatory statement was made. Plaintiffoffers a certification underthis Rule in which a qualified person describes the process bywhich the webpage was retrieved. Even ifthat certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placedthere by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable

- the authentication establishes only that the output came from the computer. 14

### A challenge to the authenticity ofelectronic evidence may require technical information about the system orprocess at issue, including possibly retaining a forensic technical expert. Such factors will affect whetherthe opponent has a fair opportunity to challenge the evidence given the notice provided. (13) Certified Data Copied from an Electronic Device, Storage Medium, or File. 

### Rule 902(13) sets forth a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, other than through the testimony ofa foundation witness. As with the provisions onbusiness records in Rules 902(11), the expense and inconvenience ofproducing an authenticating witness for this evidence is often unnecessary. 

### It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity beforethe witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure in which the parties can determine in advance oftrial whether a real challenge to authenticity will be made, and can then plan accordingly. Nothing inRule 902(13) limits a party from establishing authenticity ofelectronic evidence on any ground provided inthese Rules, including through judicial notice where appropriate. Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticatedby "hash value." A hash value is a numberthat is often represented as a sequence ofcharacters and is produced by an algorithm basedupon the digital contents ofa drive, medium, or file. If

### the hash values for the original and copy are different, thenthe copy is not identical to the original. If

### the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification ofa qualified person that the person checked the hash value ofthe proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes otherthan comparison ofhash value, including by other reliable means ofidentification provided by future technology. A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficientto establish authenticity were that information providedby a witness at trial. If

### the certification provides informationthat wouldbe insufficient to authenticate the record ifthe certifying person testified, then authenticity is not established under this Rule. The reference to the "certificationrequirements ofRule 902(11)" is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a 15

### certification under this Rule to prove the requirements ofRule 803(6). Rule 902(13) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently. A certification underthis Rule can only establish thatthe proffered item is authentic. The opponent remains free to object to admissibility ofthe proffered item on other grounds

- including hearsay, relevance, or in criminal cases the rightto confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant. A challenge to the authenticity ofelectronic evidence may require technical information about the system orprocess at issue, including possibly retaining a forensic technical expert. Such factors will affect whetherthe opponent has a fair opportunity to challenge the evidence given the notice provided ["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling: amended effective July 

### 1. 2020.]

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