Serial: 232109 

IN THE SUPREME COURT OF MISSISSIPPI 

No. 89-R-99002-SCT 

IN RE: MISSISSIPPI RULES OF 

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 of Mississippi's Advisory 

Committee on Rules. 

The Committee proposes amending Rules 502, 803(6)-(8), 803(10), 803(16), 

804(b )(3)(B), and 902(12)-(13) of the Mississippi Rules of Evidence. The motion was posted 

for comment from May 28, 2019, to June 27, 2019. 

After due consideration, we find that the motion should be granted as set forth in the 

attached Exhibit A. 

IT IS THEREFORE ORDERED that the Motion to Amend Certain Mississippi Rules 

of Evidence is granted as set f01ih in the attached Exhibit A. The amendments shall be 

effective on July 1, 2020. 

IT IS FURTHER ORDERED that the Clerk of this Court must spread this order upon 

the minutes of the Court and send a certified copy to West Publishing Company for 

publication in the advance sheets of Southern Reporter, Third Series (Mississippi Edition), 
and in the next edition of the Mississippi Rules of Court. 

SO ORDERED, this the~ day of June, 

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. 

2 
Rule 502. Lawyer-Client Privilege 

(a) Definitions. In this rule: 

EXHIBIT A 

(1) "Client" means a person, public officer, corporation, association, or any other 

public or private organization or entity: 

(A) to whom a lawyer renders 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 on behalf of the client; or 

(ii) act on behalf of the client on the legal advice rendered; or 

(B) an employee of the 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 or nation. 

(4) "Lawyer's representative" means one employed by the lawyer to assist the lawyer 

in rendering professional legal services. 

(5) A communication is "confidential" if not intended to be disclosed to third persons 

other than those: 

(A) to whom disclosure is made to further rendition of professional legal services to 

the client; or 

(B) reasonably necessary to transmit the communication. 

{6} "Lawyer-client privilege" means the protection that applicable law provides for 

confidential lawyer-client communications. 

(7) "Work-product protection" means the protection that applicable law provides for 

tangible material ( or its intangible equivalent) prepared in anticipation of litigation or 

for trial. 

(e) Limitations on Waiver. The following provisions apply, in the circumstances set out, 

to disclosure of a communication or information covered by the lawyer-client privilege or 

work-product protection. 

(1) Disclosure Made in a Mississippi Proceeding: Scope ofa Waiver. When the 

disclosure is made in a Mississippi proceeding and waives the lawyer-client privilege 

or work-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 and undisclosed communications or information concern the same 

subject matter; and 

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(C) they ought in fairness to be considered together. 

(2) Inadvertent Disclosure. 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 of the privilege or protection took reasonable steps to prevent 

disclosure; and 

(C) the holder promptly 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 of Rule 502 has been amended as part of the general restyling of the 

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 provision that one of an attorney's duties is "to maintain inviolate the 

confidence and, at every peril to themselves, to preserve the secrets of their 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 provided by the attorney must be legal 

services in order to be cloaked with the privilege. Services which are strictly business or 

personal do not enjoy the 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 of a client. This takes on particular 

significance in regards to corporate clients. This group of employees who may be a 

client's representatives is larger than the "control group". The "control group" was 

formerly one of the leading tests for determining which corporate employees had the 

benefit of the privilege. See Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 

66 L. Ed. 2d 584 (1981), in which the Supreme Court construed the language of the 

Federal Rules of Evidence as invalidating the control group test and so rejected it. 

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The definition of lawyer in Rule 502(a)(3) covers any person licensed to practice 

law in any state or nation. It includes persons who are not lawyers but whom the client 

reasonably believes are lawyers. 

The definition of representative of the 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 of the case. It does 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 that the court might 

have followed such a definition if the issue was before it. 

A communication which takes place in the presence of a third party is not 

confidential unless it complies with the statement in Rule 502(a)(5). If the third party 

does not fall within these categories in this subdivision, his presence deems the 

communication not to 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-client privilege" and "work-product 

protection," but make no attempt to alter the law on whether a communication or 

information is protected under the lawyer-client privilege or work-product protection as 

an initial matter. Subdivision (e) governs the scope of waiver and the effect of 

inadvertent disclosure. 

Subdivision (b) is a statement of the 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 Deleted FRE 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 client has a 

privilege as to his own statements. The FRE Advisory Committee Notes to Deleted Rule 

503 state that the rule is inapplicable in situations where there is no common interest to 

be promoted by a joint consultation or where the parties meet on a purely adversary basis. 

Subdivision (b) provides that the privilege includes lawyer to 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 or his personal 

representative. Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). The lawyer's claim is 

3 
limited to one made on behalf of the client; he himself has no independent claim. See 

United States 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 of a future crime or fraud. The provision that the 

client knew or reasonably should have known of the criminal or fraudulent nature of the 

act is designed to protect the client who is mistakenly advised that a proposed action is 

lawful. See McCormick, Evidence, 75. Existing law in Mississippi on this 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 Parkhurst v. 

McGraw, 24 Miss. 134 (1852); Lengsfield and Co. v. Richardson and May, 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, if this is an accurate reflection of the scarce Mississippi law on the 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 that the privilege survives 

death and may be claimed by the deceased's representative. However, this rule makes no 

sense in some cases; for instance, in will contests when various parties claim to be the 

representative of the decedent. Only at the end of the litigation will the court have 

determined who is the deceased's successor, and until it has made that determination, 

neither party is entitled to invoke the privilege. 

Rule 502(d)(3) permits the use of statements made between a lawyer and his client 

when a controversy later develops between them, such as in a dispute over attorney's fees 

or legal malpractice. 

Rule 502(e) addresses two main issues. The first is the effect of certain disclosures 

of matters protected by the lawyer-client privilege or as work product. The second is the 

concern over otherwise unnecessary litigation costs incurred to protect against 

inadvertent waiver - especially in cases involving electronic discovery - that often bear 

no proportionality to what is at stake in the case. See S. Saltzburg, M. Martin, & D. Capra 

1 Federal Rules o(Evidence Manual§ 502.02(1] (11th ed. 2016) ("[T]he common-law 

rules on waiver of privilege and work product were responsible for rising costs of 

discovery, especially discovery of electronic information. In complex litigation the 

lawyers spend significant amounts of time and effort to preserve privilege and work 

product by screening protected documents from discovery .... Moreover, an enormous 

amount of expense was being put into document production in order to protect against 

inadvertent disclosure of privileged information, because the producing party risked a 

ruling that even a mistaken disclosure can result in a subject matter waiver. [L]awyers' 

fear of waiver led to extravagant claims of privilege, i.e., privilege claims often covered 

4 
non-privileged material because lawyers were concerned about waiver if they 

underclaimed"). 

Rule 502(e)(l) provides that an intentional disclosure, if a waiver, generally 

results in a waiver only of the communication or information disclosed; a subject matter 

waiver (of either privilege or work product) is reserved for those unusual situations in 

which fairness requires a further disclosure of related, protected information, in order to 

prevent a selective and misleading presentation of evidence. See Rule 502(e)(2). The 

language concerning subject matter waiver - "ought in fairness" - is taken from Rule 

106, because the animating principle is the same. Under both rules, a party that makes a 

selective, misleading presentation that is unfair to the adversary opens itself to a more 

complete and accurate presentation. An inadvertent disclosure of protected information 

can never result in a subject matter waiver. 

Under Rule 502(e)(2)(B), considerations bearing on the reasonableness of a 

producing party's efforts include the number of documents to be reviewed and the time 

constraints for production. See Paul W. Grimm, Lisa Yurwit Bergstrom & Matthew P. 

Kraeuter, Federal Rule o(Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L. 

& Tech. 8, ,r 43 (2011) ("Determining whether reasonable precautions have been taken 

cannot be done in a vacuum, and considerations of how much is at stake in the litigation 

and the resources of the party that inadvertently produced the privileged or protected 

information are both appropriate and necessary .... "). A party that uses advanced 

analytical software applications and linguistic tools in screening for privilege and work 

product may effectively protect against a finding of waiver. See Kandel v. Brother 

International Corp .. 683 F.Supp.2d 1076 (C.D.Cal. 2010) (Party hired a consultant to 

scan its servers and archives and put documents into a database that could be 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 took minimal steps to protect against inadvertent 

disclosure, and general statement that a privilege review was done, without any 

supporting details, was entitled to little weight). The rule does not require the producing 

party to engage in a post-production review, as that would increase the cost of discovery 

and impose the very thing the rule seeks to avoid. But the rule does require the producing 

party to follow up on any obvious indications that a protected communication or 

information has been produced inadvertently. 

Under Rule 502(e)(2)(C), a party must act promptly and reasonably once it 

discovers its mistaken disclosure. While a party is not required to check after production 

to determine whether a mistake has been made, it must seek the return of the material 

once the party is on notice of the error. See S. Saltzburg, M. Martin, & D. Capra 1 

Federal Rules o(Evidence Manual§ 502.02[3J[d] (11th ed. 2016) (An "innocent recipient 

of mistakenly disclosed confidential information could be put at a disadvantage if the 

disclosing party would sit on its right to get the information back. As time passes, the 

5 
recipient 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 costly to 

unring the bell struck by mistakenly disclosed information.") 

Rule 5 02( e )( 4) enables the use of confidentiality 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 of pre-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 

of a Rule 502(e)(4) order, see S. Saltzburg, M. Martin, & D. Capra 1 Federal Rules 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 of disclosure is binding only on the parties to the agreement; if incorporated 

into a court order under 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 of Whether the 

Declarant Is Available as a Witness 

The following are not excluded by the rule against hearsay, regardless of whether the 

declarant is available as a witness: 

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, 

opinion, or diagnosis if: 

(A) the record was made at or near the time by - or from information transmitted by -

someone with knowledge; 

(B) the record was kept in the course of a regularly conducted activity of a business, 

organization, occupation, or calling, whether or not for profit; 

(C) making the record was a regular practice of that activity; 

(D) all these conditions are shown by the testimony of the custodian or another 

qualified witness, or by a certification that complies with Rule 902( 11 ); and 

(E) neither the opponent does not show that the source of information fl0F or the 

method or circumstances of preparation indicate a lack of trustworthiness. 

(7) Absence of a Record of a Regularly Conducted Activity. 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 of that kind; and 

(C) neither the opponent does not show that the possible source of the information Her 

or other circumstances indicate a lack of trustworthiness. 

(8) Public Records. A record or statement of a 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 of information Her or other 

circumstances indicate a lack of trustworthiness. 

(10) Absence of a Public Record. 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, if a public office regularly kept a record or 

statement for a matter of that kind: and 

(B) in a criminal case, a prosecutor who intends to offer a certification provides 

written notice of that intent at least 14 days before trial, and the defendant does not 

object in writing within 7 days of receiving the notice - unless the court sets a 

different time for the notice or the objection. 

(16) Statements in Ancient Documents. 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 Committee Note 

7 
(6) Records of Regularly Conducted Activity. Rule 803(6) is an expansion of 

the common law business records exception used in Mississippi. The records must be 

those of a regularly conducted business activity; however, the definition of business is 

broader than pre-rule practice in Mississippi permitted. It includes records of non-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 or to account for all 

participants who made the record. 

However, the source of the material must be an informant with knowledge who is 

acting in the course of the regularly conducted activity. This is exemplified by the leading 

case of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) which is still the applicable 

law today under the rule. That case held that a police report which contained information 

obtained from a bystander was inadmissible; the officer qualified as one acting in the 

regular course of a 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 pertaining to acts, events 

and conditions. The rule calls for the exercise of judicial discretion if there is an 

indication of a lack of trustworthiness. This permits the court to take into account the 

motivation of the informant. 

Rule 803(6) provides that if the proponent has established the stated requirements 

of the exception - regular business with regularly kept record, source with personal 

knowledge, record made timely, and foundation testimony or certification - then the 

burden is on the opponent to show a lack of trustworthiness. It is appropriate to impose 

the burden of proving untrustworthiness on the opponent, as the basic admissibility 

requirements tend to guarantee trustworthiness in the first place and thus suffice to 

establish a presumption that the record is reliable. "[Bly showing that the records 

regularly record regularly conducted activity, the proponent has made a sufficient 

showing that the records are trustworthy enough to be admissible. The proponent should 

not have to make an extra affirmative showing of trustworthiness." Saltzburg, Martin, & 

Capra, Federal Rules of Evidence JVIanual, vol. 4, § 803.02[7][g] (11th ed.) (2017). 

The opponent, in meeting its burden, is not necessarily required to introduce 

affirmative evidence of untrustworthiness. For example, the opponent might argue that a 

record was prepared in anticipation of litigation and is favorable to the preparing party 

without needing to introduce evidence on the point. The Supreme Court has noted that 

the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or 

'necessitates."' Rowlandv. California Men's Colony, 506 U.S. 194,200 0993). A 

determination of untrustworthiness necessarily depends on the 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 of Entry in Records Kept in Accordance with the Provision of 

Paragraph (6). A record's failure to mention a matter which would ordinarily be 

contained in it is admissible to prove the nonexistence of the matter. This is innovative in 

Mississippi. Traditional Mississippi courts have admitted evidence of the absence of 

matter in the record only in the cases of public records. 

While it has been unclear whether the absence of information was even hearsay, 

some courts have treated it as such and have found no exception to apply. Rule 803(7) 

settles the question of admissibility by clearly making the absence factor an exception. 

Rule 803(7) provides that if the proponent has established the stated requirements 

of the exception- set forth in Rule 803(6)-then the burden is on the opponent to show a 

lack of trustworthiness. Rule 803(7) thus maintains consistency with the trustworthiness 

clause of Rule 803(6). 

(8) Public Records and Reports. Public records and reports have been admissible 

in evidence as an exception to the hearsay rule. Countless statutory provisions in 

Mississippi formerly provided for the admission of public records. Additionally, there 

was similar development in the common law. Ludlow v. Arkwright-Boston Mfrs. Mut. 

Ins. Co., 317 So. 2d 47 (Miss 1975). Subparagraphs (A)(i) and (A)(ii) are similar to 

Mississippi practice. The rule makes no distinction between state and local records. 

Subparagraph (A)(iii) adds the new element to 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 must be factual findings made in an 

investigation which was conducted pursuant to lawful authority. Opinions and 

conclusions contained in such reports should be excluded. 

The experience in other jurisdictions which have adopted an identical rule has 

been that judges are exercising great caution in admitting these reports. Often they are 

being excluded if based on hearsay or the opinions of those not involved in the 

preparation of the report. The rule expressly gives judges the discretion to exclude such 

reports. 

Rule 803(8) provides that if the proponent has established the stated requirements 

of the exception - prepared by a public office and setting out information as specified in 

the Rule - then the burden is on the opponent to show a lack of trustworthiness. It is 

appropriate to impose the burden of proving untrustworthiness on the opponent. as the 

basic admissibility requirements tend to guarantee trustworthiness in the first place and 

thus suffice to establish a presumption that the record is reliable. See Saltzburg. Martin. 

& Capra. Federal Rules of Evidence Manual, vol. 4. § 803.02[9J[a] 01 th ed.) (2017) 

("Because of the strong presumption of reliability accorded to public reports. the burden 

of proving untrustworthiness is borne by the party seeking exclusion."); Ellis v. 

9 
International Playtex. Inc., 745 F.2d 292, 301 (4th Cir. 1984) (Public records rightly carry 

a presumption of reliability, hence it is up to the opponent to "demonstrate why a timetested and carefully considered presumption is not appropriate."). Rule 803(8) thus 

maintains consistency with the trustworthiness clause of rule 803(6). 

The opponent, in meeting its burden, is not necessarily required to introduce 

affirmative evidence of untrustworthiness. For example, the opponent might argue that a 

record was prepared in anticipation of litigation and is favorable to the preparing party 

without needing to introduce evidence on the point. The Supreme Court has noted that 

the use of the term "'indicates' certainly imposes less of a burden than, say, 'requires' or 

'necessitates."' Rowland v. California Men's Colony, 506 U.S. 194, 200 (1993). A 

determination of untrustworthiness necessarily depends on the circumstances. 

Even when admissible, public records under Subparagraph (A)(iii) may only be 

used in civil cases and in criminal cases on behalf of a defendant against the state. To 

permit the state to use such reports against a defendant would be to create confrontation 

rights problems. 

(10) Absence of Public Record or Entry. Rule 8Q3(10) is also similar to 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 of a eertifieation, Rule 

803(10) gives the possibility of a seeond form, i.e., oral testimoRy of the seareh. 

Rule 803(10) permits proof by 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), by incorporating 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 of the official who prepared the 

certificate. 

(16) Statements in Ancient Documents. The ancient documents rule is a 

traditionally recognized exception in Mississippi. Under this rule the eommon law period 

of time is redueed to a minimum of twenty 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 of unreliable electronically stored 

information (ESI). Given the exponential development and growth of electronic 

information since 1998, the hearsay exception for ancient documents had become a 

10 
possible open door for large amounts of unreliable ESL as no showing of reliability 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 of these ESI documents, especially 

given its flexible standards on which witnesses might be qualified to provide an adequate 

foundation. And Rule 803(24) can be used to 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 of the ancient documents exception is not intended to raise 

an inference that 20-year-old documents are, as a class, unreliable, or that they should 

somehow not qualify for admissibility under Rule 803(24). Finally, many old documents 

can be admitted for the non-hearsay purpose of proving notice, or as party-opponent 

statements. 

The limitation of the ancient documents hearsay exception is not intended to have 

any effect on authentication of ancient documents. The possibility of authenticating 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 of old 

information in hardcopy has been digitized or will be so in the future. Under Rule 

803(16), a document is "prepared" when the statement proffered was recorded in that 

document. For example, if a hardcopy document is prepared in 1995, and a party seeks to 

admit a scanned copy of that document, the date of preparation 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, if the content of the document is itself altered after the cutoff date, then the hearsay exception would not apply to statements that were added in the 

alteration. 

[Amended July 1, 2009; "Advisory Committee Note" 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 excluded by the rule against hearsay if the 

declarant is unavailable as a witness: 

(3) Statement Against Interest. A statement that: 

(A) a reasonable person in the declarant's position would have made only if the 

person believed it to be true because, when made, it was so contrary to the 

declarant' s proprietary or pecuniary interest or had so great a tendency to 

invalidate the declarant's claim against someone else or to expose the declarant to 

civil or criminal liability; and 

(B) is supported by corroborating circumstances that clearly indicate its 

trustworthiness, if it 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) Statement Against Interest. Rule 804(b)(3) expands the common law 

exception of declaration against interest. Traditionally, courts have recognized two 

declarations against interest, pecuniary and proprietary. The rule extends the exception to 

declarations against penal interest on the theory that such declarations are reliable. No 

reasonable person would make such a statement and invite possible criminal prosecution 

if the statement were not true. 

Subparagraph (b )(3)(B) is eoneemed with hears&)' whieh ineulpates the tleelarant 

but eJrnulpates the eriminal defendant. Unless sueh a statement eaa be eorroboratetl as 

reliable, it 1Nill 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 both the prosecution and the 

accused that the Rule will not be abused and that only reliable hearsay statements will be 

admitted under the exception. The Rules does not address the use of the corroborating 

circumstances for declarations against penal interest offered in civil cases. 

12 
In assessing whether corroborating circumstances exist. the credibility of the 

witness who relates the statement is not a proper factor for the court to consider in 

assessing corroborating circumstances. To base admission or exclusion of a hearsay 

statement on the witness's credibility would usurp the jury's role of determining the 

credibility of testifying 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 of evidence are self-authenticating; they require no extrinsic 

evidence of authenticity in order to 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 of a qualified person that complies with the certification and notice 

requirements of Rule 902(11). 

03) Certified Data Copied from an Electronic Device, Storage Medium, or File. 

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 and notice requirements of Rule 902(11). 

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

Advisory Committee Historical Note 

Advisory Committee Note 

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02) Certified Records 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 of a foundation witness. As with the provisions 

on business records in Rules 902(11), the expense and inconvenience of producing a 

witness to authenticate an item of electronic 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 before the witness is called or fails to challenge 

the authentication testimony once it is presented. Rule 902(12) provides a procedure 

under which the parties can determine in advance of trial 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 of electronic 

evidence on any ground provided in these Rules, including through judicial notice where 

appropriate. 

A proponent establishing authenticity under this Rule must present a certification 

containing information that would be sufficient to establish authenticity were that 

information provided by a witness at trial. If the certification provides information that 

would be insufficient to authenticate the record if the certifying person testified, 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 of a live witness. 

The reference to the "certification requirements of Rule 902(11)" is only to the 

procedural requirements for a valid certification. There is no intent to require, or permit, a 

certification under this Rule to prove the requirements of Rule 803(6). Rule 902(12) is 

solely limited to authentication, and any attempt to satisfy a hearsay exception must be 

made independently. · 

A certification under this Rule can establish only that the proffered item has 

satisfied the admissibility requirements for authenticity. The opponent remains free to 

object to admissibility of the proffered item on other grounds - including hearsay, 

relevance, or in criminal cases the right to confrontation. For example, assume that a 

plaintiff in a defamation case offers what purports to be a printout of a webpage on which 

a defamatory statement was made. Plaintiff offers a certification under this Rule in which 

a qualified person describes the process by which the webpage was retrieved. Even if that 

certification sufficiently establishes that the webpage is authentic, defendant remains free 

to object that the statement on the webpage was not placed there 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. 

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A challenge to the authenticity of electronic evidence may require technical 

information about the system or process at issue, including possibly retaining a forensic 

technical expert. Such factors will affect whether the 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 of a foundation witness. As with the provisions on business records in Rules 

902(11), the expense and inconvenience of producing 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 

before the 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 of trial whether a real challenge to authenticity will be made, and can then plan 

accordingly. 

Nothing in Rule 902(13) limits a party from establishing authenticity of electronic 

evidence on any ground provided in these Rules, including through judicial notice where 

appropriate. 

Today, data copied from electronic devices, storage media, and electronic files are 

ordinarily authenticated by "hash value." A hash value is a number that is often 

represented as a sequence of characters and is produced by an algorithm based upon the 

digital contents of a drive, medium, or file. If the hash values for the original and copy 

are different, then the 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 of a qualified person that the person checked the hash value of the proffered 

item and that it was identical to the original. The rule is flexible enough to allow 

certifications through processes other than comparison of hash value, including by other 

reliable means of identification provided by future technology. 

A proponent establishing authenticity under this Rule must present a certification 

containing information that would be sufficient to establish authenticity were that 

information provided by a witness at trial. If the certification provides information that 

would be insufficient to authenticate the record if the certifying person testified, then 

authenticity is not established under this Rule. 

The reference to the "certification requirements of Rule 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 of Rule 803(6). Rule 902(13) is 

solely limited to authentication, and any attempt to satisfy a hearsay exception must be 

made independently. 

A certification under this Rule can only establish that the proffered item is 

authentic. The opponent remains free to object to admissibility of the proffered item on 

other grounds - including hearsay, relevance, or in criminal cases the right to 

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 of electronic evidence may require technical 

information about the system or process at issue, including possibly retaining a forensic 

technical expert. Such factors will affect whether the 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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