TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

IN THE MATTER OF: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL RULES )

OF EVIDENCE, JUDICIAL CONFERENCE )

ADVISORY COMMITTEE ON EVIDENCE )

RULES )

Pages: 1 through 104

Place: February 12, 2016

Date: Washington, D.C.
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BEFORE THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS

IN THE MATTER OF: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL RULES )

OF EVIDENCE, JUDICIAL CONFERENCE )

ADVISORY COMMITTEE ON EVIDENCE )

RULES )

Suite 206

Heritage Reporting Corporation

1220 L Street, N.W.

Washington, D.C.

Friday,

February 12, 2016

The parties met, pursuant to the notice, at 

10:01 a.m.

PARTICIPANTS: (Via Telephone)

HON. DEBRA ANN LIVINGSTON

Member, Advisory Committee on Evidence Rules

PROFESSOR DANIEL J. CAPRA

Reporter, Advisory Committee on Evidence Rules

HON. BRENT R. APPEL

Member, Advisory Committee on Evidence Rules

HON. JAMES C. DEVER, III

Liaison Member (Criminal Rules Committee),

Advisory Committee on Evidence Rules

HON. JOHN THOMAS MARTEN

Member, Advisory Committee on Evidence Rules

HON. SOLOMON OLIVER, JR.

Liaison Member (Civil Rules Committee)

Advisory Committee on Evidence Rules

HON. RICHARD C. WESLEY

Liaison Member (Standing Committee)

Advisory Committee on Evidence Rules
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PARTICIPANTS: (Cont'd)

A.J. KRAMER, Esquire

Member, Advisory Committee on Evidence Rules

DANIEL P. COLLINS, Esquire

Munger Tolles & Olson, LLP and

Member, Advisory Committee on Evidence Rules

ELIZABETH SHAPIRO

Deputy Director, Civil Division

U.S. Department of Justice

TIMOTHY J. LAU

Federal Judicial Center

BRIDGET HEALY

Rules Committee Support Office

Administrative Office of the U.S. Courts
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C O N T E N T S

 

WITNESS: PAGE

Jonathan Redgrave 8

Redgrave LLP

Robert J. Gordon 19

Weitz & Luxenberg

William A. Rossbach 32

Rossbach Law PC

Lance R. Pomerantz 43

Land Title Law

David Romine 52

The Romine Law Firm LLC

Annesley H. DeGaris 56

DeGaris Law Group

Marc P. Weingarten 62

Locks Law Firm

Tracy Saxe 72

Saxe Doernberger & Vita, PC

Gary Brayton 79

Brayton Purcell LLP

Mary Nold Larimore 89

Ice Miller LLP
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1 P R O C E E D I N G S

2 (10:01 a.m.)

3 JUDGE LIVINGSTON: All right. Well, my name 

4 is Debra Livingston, and I'm a Judge on the Second 

5 Circuit and a member of the Advisory Committee. Thank 

6 you all for being here today. As you know, the 

7 Committee published for comment proposed amendments to 

8 Rules 803 and 902, and we are here today to hear 

9 testimony principally concerning the proposed 

10 abrogation of Rule 803.16, the exception to the 

11 hearsay rule for ancient documents.

12 Judge Sessions is the Chair of our Committee 

13 and he is unable to be here today, so I'm going to be 

14 standing in for him.

15 As I understand how we're going to proceed, 

16 we have about 10 witnesses this morning. Most have 

17 provided the Committee with written submissions, and 

18 those submissions have been provided to all the 

19 Committee members. Each will be providing testimony 

20 for up to 15 minutes, including questions.

21 We have a court reporter online to take the 

22 testimony, and that's Ms. Hester?

23 THE COURT REPORTER: Yes.

24 JUDGE LIVINGSTON: Yes. So we have the 

25 court reporter. The transcript of today's hearing 
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1 will be available for the committee members who aren't 

2 able to be present in person. The committee members, 

3 as I mentioned, have all received copies of the 

4 written submissions.

5 Let me just say at the start to thank 

6 everyone who's on the line today, particularly all the 

7 witnesses who are here. I understand some of you may 

8 be departing over the course of the proceedings as we 

9 go on, so let me take the opportunity at the beginning 

10 while everyone is here to thank you for your time and 

11 for the very thoughtful submissions we received and 

12 for your input here today.

13 This is an opportunity for the Committee to 

14 learn from and benefit from public comments, so let me 

15 also just encourage any members with questions, you 

16 may jump in. You need not wait until the conclusion 

17 of each witness's testimony.

18 As for the witnesses, if a witness preceding 

19 you has already made a point that you want to second, 

20 you shouldn't feel obligated to repeat it. You can 

21 associate yourself with the prior remarks and refer us 

22 to your written submission. We take this project very 

23 seriously and we will be pondering all the testimony, 

24 both written and oral, that we receive today.

25 Before we begin I think I should note just 
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1 for the record the members that are here, so could I 

2 ask the members of the Advisory Committee just to

3 identify themselves for the record. As I said, I'm 

4 Debra Livingston and a member of the committee.

5 JUDGE WESLEY: Hi. I'm Richard Wesley, 

6 liaison from the Rules Committee.

7 JUDGE APPEL: Brent Appel, the Iowa Supreme 

8 Court and member.

9 MR. COLLINS: Daniel Collins, a lawyer at 

10 Munger Tolles & Olson and member of the committee.

11 JUDGE MARTEN: I'm Tom Marten, a federal 

12 district judge in Wichita, Kansas, member of the 

13 committee.

14 MS. SHAPIRO: Elizabeth Shapiro from the 

15 Department of Justice.

16 MR. KRAMER: I am A.J. Kramer from the 

17 Federal Public Defender in D.C., a member of the 

18 committee.

19 JUDGE LIVINGSTON: And we had a couple of 

20 additional liaison members here. Judge Oliver?

21 JUDGE OLIVER: Solomon Oliver, liaison 

22 member from the Civil Rules Committee.

23 JUDGE DEVER: And this Jim Dever, a district 

24 judge in the Eastern District of North Carolina. I'm 

25 a liaison from the Criminal Rules Committee.
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1 JUDGE LIVINGSTON: And we have a -- I'm 

2 sorry. Dan?

3 PROFESSOR CAPRA: Dan Capra, the Reporter.

4 JUDGE LIVINGSTON: And we have a 

5 representative from the Federal Judicial Center.

6 MR. LAU: Oh, this is Timothy Lau.

7 JUDGE LIVINGSTON: I think those are our 

8 attendees, unless I'm missing anyone.

9 (No response.)

10 JUDGE LIVINGSTON: Okay. Let me turn it 

11 over to our Reporter, our wonderful Reporter.

12 PROFESSOR CAPRA: That's for the record. 

13 For the record, that is noted.

14 JUDGE LIVINGSTON: It is, it's on the 

15 record. To Professor Capra, who is going to queue up 

16 our witnesses, and I think we're ready to begin.

17 PROFESSOR CAPRA: Thank you, Judge 

18 Livingston, and thanks very much for chairing today, 

19 and I want to especially thank Dan Collins for waking 

20 up today as it's 7:00 in the morning out there, so 

21 appreciate that, Dan.

22 And as we go to our first witness of the 

23 day, we wanted to -- and we appreciate all the 

24 witnesses. We had to make a quick change overnight. 

25 Jonathan Redgrave had some travel schedules. We'd 
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1 like to thank everybody for accommodating that. So 

2 I'm going to call on Jonathan Redgrave for testimony.

3 MR. REDGRAVE: Thank you. This is Jonathan 

4 Redgrave. For the record, I am a partner in Redgrave 

5 LLP in our Chantilly, Virginia, office, and I 

6 appreciate the opportunity to appear before the 

7 Committee to provide my testimony. I will be 

8 remarkably brief both because I submitted written 

9 comments and I am in an airport at the moment, and so 

10 I don't want to extend the time I'm testifying here. 

11 But I did want to ask that my written testimony, and 

12 in doing so I want to note for the record that, of 

13 course, these are my personal views, not necessarily 

14 those of my firm or any of its clients.

15 But my background in working on issues of 

16 electronically stored information and their 

17 implications for litigation, criminal and civil, spans 

18 more than a decade, far more than a decade in my 

19 experience as a lawyer, and when I saw these rules 

20 being submitted, it touched on something that I had 

21 long mused about and that was the abrogation of the 

22 ancient documents exception to the hearsay rule. I 

23 also looked with interest at the amended or the 

24 amendments to Rule 902 as they related to providing a 

25 streamlined way to allow for evidence to be introduced 
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1 into our court system. I commend the members of the 

2 Committee who proposed such changes.

3 Obviously, in looking at the public comments 

4 submitted to date, there have been a number of issues 

5 raised with respect to the proposed abrogation of the 

6 exception for ancient documents, and that's really 

7 what I just wanted to touch upon briefly in oral 

8 testimony today.

9 In particular, and I think Professor Capra 

10 in his article aptly identified both the genesis of 

11 the exception and how its application in today's world 

12 could, quite frankly, bring unintended consequences in 

13 allowing substantial amounts of information into 

14 evidence that were never contemplated in a world in 

15 which people are looking at paper records.

16 But more importantly and what struck me in 

17 looking at the number of comments was a serious 

18 concern and I'm sure the committee members are taking 

19 it seriously where individuals are concerned about a 

20 change that would have the effect of eliminating the 

21 availability of evidence coming into the courtroom for 

22 older documents of any genesis.

23 A number of comments was that business --

24 information that certain businesses might have, but 

25 the same could be applied to government entities or to 
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1 individuals, I assume. I think the Committee in its 

2 proposed rule and the comments that I have read aptly 

3 identified the fact that there are alternative means 

4 by which reliable evidence, evidence that really has 

5 the indicia of reliability, there are other vehicles 

6 by which that information can and would walk into 

7 court. Evidence should have that reliability to be 

8 able to get through the hearsay rule, and there are a 

9 number of exceptions, and I know it's been developed 

10 by the Committee and I also reflected that in my 

11 written submission.

12 So while I think the concerns should be 

13 heard from all the people that have raised them, I 

14 think that the other avenues to allow evidence to come 

15 in do provide those ways in such a way that the 

16 abrogation of this rule will not impair the ability of 

17 individuals or corporations or anyone who seeks to be 

18 the proponent of evidence from being able to get that 

19 evidence into court as needed.

20 Again, I applaud kind of the sensibility of 

21 this because I do not believe that just because a 

22 piece of electronic information has been sitting 

23 around in a computer 20 years and a day it suddenly 

24 has a greater level of reliability as a piece of 

25 evidence from the standpoint of the hearsay rule such 
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1 that it should now walk into court without that date 

2 that it has to come over, and this is increasingly 

3 important when we think about the volumes of 

4 information that are sitting around in computers today 

5 everywhere. The legacy systems, in fact, President 

6 Obama was just talking about on the executive side for 

7 the government, the need for security purposes to 

8 start looking at legacy systems, legacy information 

9 because there's a lot of it around.

10 Well, that just reflects a reality of I 

11 think anyone who's been involved in small business, 

12 large business, or even our own personal lives. We 

13 have a lot of information that's electronically stored 

14 that is still around.

15 I think that Professor Capra's article 

16 really touched on the crux of this. The volumes here 

17 are so great that we just can't say let's wait several 

18 years down the road and see if a problem arises. I 

19 think the foresight of the Committee in addressing the 

20 problem now that I think is going to arise and I think 

21 is in front of us is smart, and I also believe, as I 

22 said before, I don't believe that there is a 

23 preclusive effect by abrogating this exception to the 

24 hearsay rule that would preclude individuals or 

25 corporations or whoever needs to use the evidence from 
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1 using the other hearsay exceptions, including the 

2 catchall exception, to be able to get evidence into a 

3 proceeding.

4 With that, I don't want to say anymore. I 

5 know there are other witnesses here who have their 

6 testimony to present. I'd be happy to address any 

7 questions the Committee has for me, but in closing, I 

8 again thank you for the opportunity. I greatly 

9 appreciate the entire way in which the Federal Court 

10 System runs and has for decades with respect to the 

11 Rules Enabling Act and how rules are promulgated and 

12 this opportunity for any individual to make a 

13 submission to you and provide you with comments on 

14 proposed rules. So, again, thank you for the 

15 opportunity.

16 PROFESSOR CAPRA: Jonathan, this is Dan 

17 Capra. I just have a couple questions that you 

18 haven't talked about that were in your submission if I 

19 could.

20 MR. REDGRAVE: Yes.

21 PROFESSOR CAPRA: Okay. So about the 902 

22 provisions, you think they are useful. I mean, would 

23 you use them in your practice? Is it going to help 

24 streamline litigation? Do you think that that's a 

25 real possibility?
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1 MR. REDGRAVE: I do, and I said in my 

2 written submission in August and October I focused on 

3 the issues of the tensions, but the 902 additions on 

4 13 and 14 I think will be available and will be used 

5 because of the fact that maybe people haven't actually 

6 walked through all of this yet. They haven't had a 

7 lot of ESI where they're trying to get it into 

8 evidence.

9 PROFESSOR CAPRA: Yeah.

10 MR. REDGRAVE: But you're actually really 

11 streamlining some processes that I've seen other 

12 people start thinking about and they're locked up. 

13 They're like, well, how are we actually going to get 

14 over this? You know, can we self-authenticate? How 

15 would this actually work? There's a lot of wasting. 

16 What do we actually do? So it's I think a valuable 

17 addition to add these subsections.

18 PROFESSOR CAPRA: Okay. And then the other 

19 thing you had was about business records. Did you 

20 want to just speak a minute for that while we have you 

21 on the phone and before you take a plane?

22 MR. REDGRAVE: Sure, I'd be happy to do that 

23 and I realize it's out of scope for this particular 

24 rule change.

25 PROFESSOR CAPRA: Right. It's just for the 
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1 future and since we have you here I thought it would 

2 be useful, and you still have a few minutes.

3 MR. REDGRAVE: Sure, I appreciate that. And 

4 what I really wanted to do is highlight a concern that 

5 I think the Committee looking at the evidence rules 

6 should think about in terms of the business records 

7 because that exception to the hearsay rule, as Judge 

8 Grimm noted in the Lorraine case, has had inconsistent 

9 application, and by that, in my personal experience, 

10 I've had some courts that have walked through the 

11 actual predicate to the rule and they ask that they 

12 actually be met, and others have just assumed 

13 everything that was on a computer that was run by the 

14 company seemingly ought to be one big business record.

15 And if we go back to even the touchstone for 

16 this discussion on the ancient documents rule, we're 

17 looking for these indicia of reliability, and we're 

18 using the business records exception really loosely as 

19 a, you know, regularly conducted activities exception, 

20 but that really gets to the fact that I think just 

21 because something was recorded regularly on a computer 

22 because the computer software, whether it's Microsoft, 

23 Google or whatever, actually is recording a keystroke, 

24 that's not providing the indicia necessarily of the 

25 fact that the person entering it or, you know, the 
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1 system entering it, that that data necessarily was 

2 data that meets the other references of the business 

3 records concept that's embedded in the regular 

4 activity exception in 803(6).

5 And so what I'm suggesting is it's an area 

6 that should receive study. I think there's a great 

7 need for that because there's going to be questions 

8 that come up in time as time passes where you might 

9 very well need to have a better understanding of both 

10 how a proponent could walk into court for a business 

11 to establish it or how someone who needs to establish 

12 that something is a business record would do it, and 

13 you've also, you know, you've got in the rule the 

14 ability of qualified witnesses to provide that 

15 foundational layer to get through and establish 

16 something is properly within the scope of the 

17 exception.

18 I could discuss this all day, but I think 

19 the point that I raised in my submission was I think 

20 this is an important area because for the, again, 

21 extensive amount of electronically stored information 

22 that we generate and how it just proliferates in 

23 different ways that we can't even imagine today what 

24 we're going to see down the road, we should think of 

25 technology diagnostic ways to ensure that the rule 
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1 works as intended so we have the proper gatekeeping 

2 function, so to speak, to make sure that things that 

3 are coming in are what the rules makers, this body, 

4 actually intends to be the right way for the 

5 information to get through and be a proper exception 

6 to the hearsay rule. So that's really why I wanted to 

7 highlight that, but I appreciate that question.

8 PROFESSOR CAPRA: All right. Any other 

9 questions from the Committee?

10 JUDGE APPEL: Yes. Brent Appel. I'd just 

11 like to ask one question. You pointed out rightly and 

12 the Committee is well aware, of course, of Rule 807, 

13 which potentially at least would allow some of the 

14 ancient documents where there's really a demonstrated 

15 need to come in and not have some of the serious 

16 problems we've seen, but are you worried about 

17 inconsistent application of 807? 807 will tend to be 

18 a discretionary call, and there's some suggestion in 

19 the submissions that Judges are sometimes reluctant to 

20 use 807. So I'm just curious to hear your comments on 

21 how you think 807 would operate.

22 And then, secondly, briefly could you 

23 discuss Professor Capra's second alternative, which is 

24 to use the necessity language? Could you express some 

25 views on that, please?
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1 MR. REDGRAVE: Sure. On the first point, 

2 with respect to 807 and potential inconsistent 

3 application, I suppose I'm on dangerously thin ice in 

4 front of a few Judges to suggest that Judges would be 

5 inconsistent, but, of course, I think our experience 

6 bears out that Judges may have different views on the 

7 ways in which they're going to apply and interpret the 

8 rule.

9 I don't think we can ever avoid that. I do 

10 think there are ways in which the Federal Judicial 

11 Center through education can ensure if there's a real 

12 concern about greater level of inconsistency about the 

13 application as well as other ways to educate, I would 

14 suggest that perhaps even with the rule amendment 

15 itself additional language in the comment could be 

16 added to reflect the need for Judges to provide 

17 serious consideration of 807 as a means by which 

18 documents that may have previously qualified under a 

19 now abrogated rule should at least be considered with 

20 the 807 factors.

21 With respect to the second question you 

22 raised, and I think this is going back to what 

23 Professor Capra suggested in terms of additional ways 

24 in which the evidence might be introduced. I think 

25 when I looked at that I also thought of ways --
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1 PROFESSOR CAPRA: It was basically to take 

2 the necessity given from the residual exception and 

3 put it into 803(16).

4 MR. REDGRAVE: Right.

5 PROFESSOR CAPRA: So you had to show that it 

6 was necessary.

7 MR. REDGRAVE: Right. As an alternative, 

8 right?

9 PROFESSOR CAPRA: Yes, an alternative.

10 MR. REDGRAVE: Yeah, I thought that, you 

11 know, thinking about it on the fly, the clean 

12 abrogation is, I think, the better way to approach the 

13 rule if I'm understanding the question correctly 

14 because I just believe you're going to be able to get 

15 through other means appropriately the evidence that is 

16 appropriate into the courthouse.

17 PROFESSOR CAPRA: Okay. Any further 

18 questions?

19 (No response.)

20 PROFESSOR CAPRA: So, Judge Livingston, 

21 should I just call on the next witness?

22 JUDGE LIVINGSTON: Yes. And let me thank 

23 Mr. Redgrave. This is very helpful, and thank you for 

24 taking the time this morning, particularly when you're 

25 in an airport.
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1 MR. REDGRAVE: No problem. I appreciate 

2 that. I will actually put this on mute for the 

3 remainder of time that I can stay right now. There 

4 are a number of other witnesses here that I'm 

5 interested, all the witnesses, hearing their testimony 

6 and appreciate that opportunity as well. Thank you.

7 JUDGE LIVINGSTON: Thank you.

8 PROFESSOR CAPRA: Thank the gentleman.

9 Is Robert J. Gordon on the line?

10 MR. GORDON: Yes, I am.

11 PROFESSOR CAPRA: Okay. So you are next.

12 MR. GORDON: Thank you very much, members of 

13 the committee and Professor Capra. I appreciate it. 

14 I'm actually out here in Phoenix where I've been 

15 waiting since January to speak with you, but I 

16 appreciate the opportunity when that was canceled to 

17 speak with you today. I will make my comments very 

18 brief as I have another appointment right now that 

19 initially 'til yesterday was actually supposed to be 

20 first, but that's no problem. I was happy to hear Mr. 

21 Redgrave's comments, and I have others behind me on 

22 the plaintiffs' side of the V who can speak better 

23 than I can on this, and as a litigator, I never like 

24 to say that, but I admit that here.

25 I've been a litigator for 36 years. I was 
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1 an assistant district attorney in Philadelphia trying 

2 criminal cases under Ed Rendell from '80 to '84. 

3 During that time I was an adjunct professor at Temple 

4 University teaching the American jury system.

5 I then from 1984 began working with people 

6 who were building ships during World War II, and they 

7 were exposed to asbestos. They were dying of 

8 mesothelioma and lung cancer, and I had cases where, 

9 although they say the average latency -- sorry -- the 

10 minimal latency is 20 years, certainly the more 

11 average latency for these types of occupations related 

12 to diseases for asbestos was more commonly 30, 40, 50 

13 years. I had one who was 70 years post his initial 

14 exposure to asbestos who developed mesothelioma 

15 eventually.

16 And, of course, we then need to go back in 

17 all of those cases, and I've done this with other 

18 sources of chemicals that have long latency periods, 

19 where we would have to establish what was known and 

20 when it was known, whether the manufacturer knew or 

21 should have known of the dangers of placing that 

22 product in the stream of commerce at the time that 

23 they placed it in the stream of commerce, which is 

24 always, you know, in those cases always 20-plus years.

25 So, to accomplish that, we always rely on 
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1 ancient documents, and finding anyone who can go back 

2 and authenticate those documents is exceedingly 

3 difficult, if not impossible.

4 PROFESSOR CAPRA: Could you give us an --

5 I'm sorry. Could you give us an example of the kind 

6 of document you would have to use in a situation like 

7 that?

8 MR. GORDON: Well, for example, some of the 

9 most famous documents involve the communications 

10 between the heads of a company called Raybestos11 Manhattan and Johns Manville, other documents, and 

12 those were found in the attic of, I believe, Sumner 

13 Simpson's home in New Jersey many years later, and 

14 they were exactly documents about what testing was 

15 done, what they knew, what they wanted to do, what 

16 they wanted to hide, what they wouldn't let out in the 

17 public. It's the most critical smoking gun documents 

18 you could find.

19 PROFESSOR CAPRA: Why wouldn't they be party 

20 opponent statements?

21 MR. GORDON: They may not necessarily be 

22 party opponents. Oftentimes what we need to show is 

23 not what was known but what was knowable, and in order 

24 to prove what was knowable under cases like the 

25 progeny of George case out of the Second Circuit
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1 was --

2 PROFESSOR CAPRA: Uh-huh.

3 MR. GORDON: -- that what was known at the 

4 time by others who were similarly situated.

5 So Johns Manville, who did the work to know 

6 that asbestos was going to kill people --

7 PROFESSOR CAPRA: Right.

8 MR. GORDON: -- did the work, and there was 

9 another company, and they're not part of it. Just a 

10 moment.

11 PROFESSOR CAPRA: Sorry?

12 MR. GORDON: Pardon me one moment. I was 

13 just thinking that I was due in court and I knocked my 

14 phone off.

15 The point was that it may not be a party to 

16 that actual litigation but what was known by other 

17 similarly situated manufacturers at the time because 

18 of Rule 803(16), and these documents were considered 

19 able to be self-authenticating.

20 In all my years of practice, in 36 years of 

21 practicing in many different types of courts, I have 

22 never heard of anyone attempting to defraud the Court. 

23 Now I may be very limited there and the experts could 

24 prove me wrong, but I know a lot of people in the 

25 business for many, many, many years, almost four 
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1 decades, and I have not seen any allegations that 

2 there's been any increasing widespread fraud that's so 

3 great about this that we need to go, oh, my God, we 

4 have to come up with some other solution.

5 I am concerned and I appreciate that the 

6 role of these committees is to see problems before 

7 they arise, but I don't really understand. Mr. 

8 Redgrave's comments seem to be academic musings at 

9 this point and a concern for what may arise. But I 

10 believe at this time that this is a proposed solution 

11 in search of a nonexistent problem.

12 If indeed the electronic recordkeeping going 

13 forward means that this will eventually mean that it's 

14 not necessary to rely on these documents, great. 

15 That'll happen naturally. But not all documents are 

16 saved electronically and not all documents are 

17 discovered in electronic form.

18 Now, if there's been an explosion of 803(16) 

19 motion practice where federal judges are coming and 

20 saying we've got to get rid of this because they would 

21 have all this motion practice, I'd get it. My concern 

22 is exactly what was just raised by the Judge, the 

23 inconsistent application, the opportunity for 

24 inconsistent applications under Rule 807, which 

25 require "the rarest of circumstances" for that 
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1 residual exception.

2 They're very fact-sensitive regarding 

3 notice, necessity, materiality, and what that means is 

4 a guy in my position on my side of the V who has not 

5 just one case but potentially in mass tort litigation 

6 whole bunches of them, I need to know what I think is 

7 going to get into evidence before I get a decision so 

8 that I can get a realistic evaluation of the case, the 

9 defendant can get a realistic evaluation of the case, 

10 and we can settle these cases out of court, as 99.9 

11 percent of all tort cases do.

12 When you start to do this, I see this change 

13 to defense attorneys going to say, oh, let's fight 

14 this, let's fight that, let's not let this in, let's 

15 see how the Judges rule on that. You'll get different 

16 applications of 807 for the same documents in 

17 different Circuits, and it's going to result in more 

18 motion practice, exactly what I think the Judges would 

19 not want to be putting on their plates, and there will 

20 be more business records. We'll still have to try to 

21 search for business record custodians under the 

22 business records rule. It's going to be difficult, 

23 expensive, unnecessary, unnecessarily expensive when 

24 there's not been any claims for fraud.

25 So, in my view, let it die a natural course, 
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1 the ancient document rule, if it's not going to be 

2 reliable, but right now there is a clear need for the 

3 ancient document rule among my brethren who will speak 

4 after me, I'm sure, and there's no allegation of 

5 widespread or growing abuse of the rule. So, to me, 

6 if there's a need that we're telling you is critical 

7 to us and there's no problem out there that needs to 

8 be cured presently, I'm one of the guys that says "if 

9 it ain't broke, don't fix it" because I believe what 

10 you'll do is create more problems going forward for 

11 the federal bench.

12 PROFESSOR CAPRA: Thanks.

13 Questions from the Committee?

14 JUDGE APPEL: Brent Appel. The same 

15 question I asked the prior witness. So what about 

16 Professor Capra's alternative of adding a necessity 

17 requirement to the ancient document rule?

18 MR. GORDON: Again, unless I'm seeing what 

19 the problem is that you are trying to address, the 

20 current problem, if we're letting in documents that 

21 shouldn't be let in, that's a big problem. I agree as 

22 a litigator it's about the search for truth. I 

23 haven't seen that allegation on any sort of widespread 

24 basis.

25 PROFESSOR CAPRA: But you wouldn't have 
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1 trouble showing necessity for the documents you've 

2 referred to.

3 MR. GORDON: I don't believe so.

4 PROFESSOR CAPRA: But you need them and they 

5 can't be gotten in any other source, right?

6 MR. GORDON: I, of course, would never want 

7 to put in anything I didn't need or want, but I've got 

8 somebody on the other side of the V who's going to be 

9 saying, "Oh, no, it's not necessary. They can do 

10 this. They can do that." All that's going to do is 

11 say to me and to them we're going to have to go to 

12 court. We're going to have to go to court and we're 

13 not going to resolve this case until you know whether 

14 this what I consider to be very necessary document is 

15 coming in, and you don't want to settle on your side, 

16 Mr. Defendant, until you know whether that's going to 

17 be evidence that is not admitted into court and 

18 therefore you could knock out a whole tranche of 

19 evidence that flows from that and perhaps a whole 

20 tranche of cases and a whole litigation, and next 

21 thing you know we're going to be trying to resolve 

22 what is necessary, you know, between the people who --

23 JUDGE LIVINGSTON: So from your perspective, 

24 so from your perspective, adding a discretionary 

25 element that puts discretion in the hands of the 
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1 District Court is problematic for the reasons you've 

2 already stated. It makes it hard to know what proof 

3 you're going to be permitted to put into evidence, 

4 harder to settle cases beforehand.

5 MR. GORDON: Exactly, and more motion 

6 practice. Exactly.

7 PROFESSOR CAPRA: What do you think, Mr. 

8 Gordon, about some kind of grandfathering clause? In 

9 other words, going forward abrogating the exception 

10 but somehow seeking to retain the documents that are 

11 old as of today.

12 MR. GORDON: I understand where you're going 

13 with that and I appreciate it. Again, this Committee 

14 serves an important purpose, and the academic 

15 evaluation is necessary to make sure we don't get 

16 swept behind something. I'm not sure we're already at 

17 a point where we have the problem existing. Now could 

18 you just remind me again the question, again?

19 PROFESSOR CAPRA: Well, my question is let's 

20 just -- in other words, anything that's today --

21 MR. GORDON: Oh, oh, grandfather. My point 

22 being that I don't know how long my grandfather is 

23 going to live. When you have sunset provisions, I 

24 don't know are we talking summer, are we talking 

25 Daylight Savings Time. My point is I don't know when 
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1 those documents will -- when this need is going to 

2 end, but I think that there's always going to be one 

3 thing, this Committee, and this Committee can address 

4 that as we go forward, but, you know, this really is 

5 something no one is even using this anymore. Why 

6 don't we just now grandfather in? Let it die slowly 

7 rather than to try to euthanize this.

8 PROFESSOR CAPRA: Okay. Any --

9 MR. GORDON: That --

10 PROFESSOR CAPRA: Sorry, go ahead.

11 MR. GORDON: That's it. I'm sorry.

12 PROFESSOR CAPRA: Okay. Any further 

13 questions?

14 MR. KRAMER: This is A.J. Kramer. Could I 

15 ask you two -- they're kind of related -- in your 

16 submission you talk about that the basis for the 

17 admission are that they are considered trustworthy, 

18 and I'm curious why that is in 20 years a document 

19 becomes trustworthy?

20 And second of all, you say later on in your 

21 submission the documents are obviously reliable agent 

22 documents, and I wondering how that's determined.

23 MR. GORDON: Well, first of all, that goes 

24 back to a discussion about whether there should be an 

25 ancient documents rule ever in history. I mean, that 
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1 was a decision public policy wise that it was 

2 considered that people were not going to have the 

3 prescience to be knowing that they should be 

4 falsifying a document 20-plus years before that would 

5 be showing something that would be relevant in a 

6 lawsuit I guess in terms of liability, knowledge, 

7 causation, et cetera.

8 So, you know, and I recognize that you're 

9 with a federal public defender and this probably 

10 doesn't come up as much in your type litigations. I 

11 know it didn't when I was an assistant district 

12 attorney. But I think when you see these documents, 

13 you recognize that they're on their face self14 authenticating. They still may be not relevant, et 

15 cetera, but if you see the type of documents I'm 

16 talking about, their relevance and authenticity to me 

17 is obviously clear.

18 JUDGE LIVINGSTON: This is Debra Livingston. 

19 Mr. Gordon, let me just ask. I understand you could 

20 say that with regard to ancient documents found in an 

21 attic that there are circumstantial guarantees and the 

22 fact that they were kept so long, that they're very 

23 much needed in the litigation. Do you have a concern 

24 about in an era of electronic-stored information where 

25 it's said commonly today that no one ever deletes 
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1 anything anymore because storage is so vast and so 

2 easy that we are permeated with electronic information 

3 that will age very quickly, and it will not be of the 

4 same sort of information, the same sort of 

5 circumstantial guarantees of reliability that sort of 

6 surround the ancient document exception when it was 

7 referring to hard copy documents? Is that a concern 

8 of yours?

9 MR. GORDON: I think that may be a concern 

10 going forward in terms of the Committee, and I am not 

11 an expert in electronic data saving. I am concerned 

12 that there may be hard copies of documents that exist, 

13 though, ultimately after electronic documents are not 

14 saved, and I don't believe necessarily that all 

15 documents will ultimately be saved in electronic form 

16 in a way that will be retrievable by plaintiffs, 

17 plaintiffs' attorneys.

18 JUDGE LIVINGSTON: Mm-hmm.

19 MR. GORDON: So I'm not saying that more 

20 study isn't needed. I'm saying I believe at this time 

21 with regard to this particular proposal to abrogate 

22 that it is premature at best.

23 PROFESSOR CAPRA: Anything further?

24 MR. COLLINS: This is Dan Collins. I had a 

25 quick question. The Advisory Committee notes that go 
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1 back to the adoption of this requirement note that it 

2 was similar in many respects to the California 

3 evidence code rule, but it noted that the California 

4 evidence code rule imposes an additional requirement 

5 that wasn't adopted, and that is that the statement 

6 has been since generally acted upon as true, having an 

7 interest in the matter. And the comments for that in 

8 California say the age of the document alone is not a 

9 sufficient guarantee of the trustworthiness that may 

10 be contained therein to warrant the admission of the 

11 statement into evidence. Accordingly, Section 1331 

12 makes it clear that the statement itself must have 

13 been generally acted as true for at least 30 years by 

14 persons having an interest in the matter.

15 What do you think of that kind of a 

16 requirement, and to your knowledge has that been a 

17 problem in the six years that that's been the law in 

18 California?

19 MR. GORDON: I do not practice in 

20 California. Are there others on the call who are from 

21 the plaintiff's side? I'm not sure.

22 PROFESSOR CAPRA: We can ask that as we go 

23 through it.

24 MR. GORDON: Yeah, yeah, yeah. I would just 

25 ask. I unfortunately am sort of at the end of my 
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1 timeline. I'm so sorry, but I thought I'd be done by 

2 8:15 or thereabouts.

3 PROFESSOR CAPRA: All right. We didn't mean 

4 to grill you. You're the first one from your side to 

5 speak, though.

6 JUDGE LIVINGSTON: Yes.

7 MR. GORDON: Right, exactly, and I have 

8 wonderful people behind me. I thank you so much for 

9 taking my testimony. If it would be all right for me 

10 to sign off at this point, I'll let them address that, 

11 especially with regards to the California question 

12 that was just asked by the committee member.

13 JUDGE LIVINGSTON: Thank you so much for 

14 your time this morning.

15 MR. GORDON: Thank you very much. I 

16 appreciate it.

17 PROFESSOR CAPRA: So we'll proceed to our 

18 next witness, William Rossbach.

19 MR. ROSSBACH: Thank you very much. Can you 

20 hear me? Am I coming through okay on my speakerphone?

21 PROFESSOR CAPRA: From my end you are.

22 JUDGE LIVINGSTON: Yes, you are.

23 PROFESSOR CAPRA: Yeah.

24 MR. ROSSBACH: Great. Thank you very much. 

25 Good morning, Judge Livingston and all of the other 
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1 members of the Committee. I greatly appreciate the 

2 opportunity to provide my comments here from Montana.

3 I'm a graduate of Yale and the University of 

4 Montana. I'm a member of the Board of Governors of 

5 the American Association of Justice and Public 

6 Justice, but these are my comments.

7 I live in Montana, but my practice is 

8 regional or even national. I've been counsel in 

9 litigation in eight or nine states, five federal 

10 districts, four Circuits and the U.S. Supreme Court. 

11 My practice has always been limited to science and 

12 medicine, environmental and technical-based 

13 litigation.

14 I submitted my comments and I was planning 

15 to kind of go through them, but because of the two 

16 prior comments and lots of questions being raised, I 

17 thought I might just kind of cut to the chase a little 

18 bit and try to address some of the things that have 

19 been brought up in the prior testimony, see how it 

20 matches up with my own sense of this.

21 First of all, as I submitted, I provided two 

22 examples out of my own practice which I think show the 

23 nature of the kind of documents that we're talking 

24 about, the importance to the litigation, the need for 

25 the litigation, and I think I kind of will segue from 
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1 that on the assumption that you've read my testimony. 

2 There's the Globeville ASARCO litigation and the 

3 Remington documents.

4 PROFESSOR CAPRA: I've got a question about 

5 the ASARCO. Those are being offered to show that 

6 ASARCO knew about a danger, isn't that correct? Is 

7 that correct?

8 MR. ROSSBACH: That's correct, and the point 

9 that I think you might be making is whether these were 

10 about admissions of a party opponent.

11 PROFESSOR CAPRA: No. No, I'm not. I'm 

12 making a different point. I'm saying that if they're 

13 offered for that ASARCO knew about a condition, 

14 they're not hearsay at all because they're offered for 

15 knowledge.

16 MR. ROSSBACH: But here they are because 

17 they were not all ASARCO documents. They were 

18 documents that were submitted by accountants, outside 

19 accountants, outside auditors.

20 PROFESSOR CAPRA: I understand that. That's 

21 why they might not be party opponent statements. But 

22 if you're offering it to prove knowledge of a 

23 condition, it's not hearsay at all.

24 MR. ROSSBACH: Well, it's also knowledge of 

25 the condition but also failure to act on the 
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1 condition.

2 PROFESSOR CAPRA: Well, but that follows 

3 from the first. In other words, they knew it and they 

4 failed to act, but the failed to act is just the 

5 inferences derived from other evidence. The fact that 

6 they -- well, I just wanted to know what you thought, 

7 whether that would be an argument that somebody could 

8 make, that you don't have to worry about the ancient 

9 documents exception because if you're offering it as 

10 evidence for knowledge it's not hearsay at all.

11 MR. ROSSBACH: Okay. Then that sort of 

12 brings me to another point, and I understand the 

13 concern that Mr. Redgrave raised, is that there are 

14 other, and this is something that comes out of the 

15 Reporter's comments, is that there may be other ways 

16 of getting these in, and I think I'll follow up with 

17 what Mr. Gordon says, is that the riff is that there 

18 will be inconsistent application. There will be 

19 differences of opinions among courts.

20 The current rule provides certainty and 

21 security to be sure that you get these documents in. 

22 They're not disputed. And the point I think that I 

23 made in my presentation is that all this is is a rule 

24 of admissibility. The credibility of it, the jury's 

25 acceptance of these documents are all items that can 
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1 be argued in front of the jury.

2 There's a recent case in fact interestingly 

3 enough that comes out of the International Association 

4 of Defense Counsel. I've been doing some additional 

5 research. And there's a David Schaeffer article in 

6 August of 2014 that references a Kentucky Appellate 

7 Court case, McGuire v. Lorillard. I can provide the 

8 cite. That basically allowed the documents in, and 

9 the Court said, well, and this was submitted by 

10 defense counsel, and the Court specifically said the 

11 plaintiff had ample opportunity to contest the 

12 documents, to argue about their reliability, to argue 

13 about who said what, when, and where, and how credible 

14 those documents could be.

15 PROFESSOR CAPRA: But that's true of any 

16 hearsay that's ever admitted. I mean, if you were to 

17 admit every hearsay document in the world --

18 MR. ROSSBACH: I agree, but that's --

19 PROFESSOR CAPRA: -- the other side can make 

20 an argument about it.

21 MR. ROSSBACH: I agree, but if you go to --

22 this is where I harken back, and I think I addressed 

23 it in my comments, is that the Rule 803 exceptions, 

24 every single one of them has sort of a blend of 

25 necessity and circumstantial evidence, and the 
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1 circumstances indicate trustworthiness, and this goes 

2 back to Wigmore. I went back since the time that I 

3 submitted these comments, Wigmore, McCormick, et 

4 cetera. There's also an interesting article in 1930 

5 from a Texas Law Review that says each one of those 

6 exceptions to 803, and it's not just (16), is some 

7 combination of necessity and circumstances. In some 

8 cases the necessity is stronger, in other cases the 

9 necessity is less, but the circumstances of 

10 reliability are more.

11 And what I said in my comments is is that if 

12 you wanted to drill down and go through all of those 

13 hearsay exceptions in 803, each one of them has some 

14 question about them, but they've all been relied on. 

15 They're venerable. Courts have used them. They're 

16 not disputable in terms of inconsistent application.

17 I guess then I wanted to address the 

18 grandfather issue and basically come down to my bottom 

19 line point. I totally agree with the Reporter and the 

20 Advisory Committee memorandum. ESI is a problem. ESI 

21 needs to be dealt with. We have the Sedona 

22 Conference. There's many experts in the field of ESI. 

23 But I don't think that a total abrogation of Rule 

24 803(16) is the answer to dealing with the ESI problem. 

25 ESI and ancient documents, they're not just apples and 
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1 oranges, it's animals and fruit. ESI are essentially

2 malleable, mutable. There's no such thing as a hard 

3 copy. Every time you open a document or move a 

4 document you've added something to the metadata.

5 Again, I'm not an expert in this, but, to 

6 me, trying to -- I think it's, and as I said in my 

7 notes, I think what we need to do is find a way, and I 

8 think you used the term "carveout", basically say this 

9 rule does not apply to ESI.

10 Now I understand the Reporter, you've raised 

11 some issues about how do we deal with ESI. Well, it 

12 seems to me that we have many experts in this area, 

13 the Sedona Conference, for example. If we sat down 

14 and put together a subcommittee to deal with ESI and 

15 focus on the evidentiary issues of ESI that we would 

16 be able to come up with language which would be able 

17 to carve it out, you know, whether it's -- I'm 

18 uncomfortable talking about hard copy and printouts 

19 and all of that. Certainly those are issues, but 

20 those are drafting issues.

21 I don't believe that we need to abrogate a 

22 rule that's been in existence for more than 100 years, 

23 that has been widely accepted, that is rarely used, 

24 and that provides consistency and certainty in 

25 litigation, and that it has the attributes of 
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1 trustworthiness because of its age, because at the 

2 time these documents were made there was no reason to 

3 fabricate or prevaricate about what the declarant was 

4 saying.

5 And so, in that case, they are really no 

6 different from many of the other -- many of the 

7 excited utterance, present sense impression, all of 

8 those are things that we are making certain value 

9 judgments about their reliability based upon the 

10 circumstances of when they were set. I think it's the 

11 same here.

12 In terms of, let's see, what other -- oh, 

13 the California. Judge Collins raised the issue of the 

14 California -- whether the California language about 

15 proof that it had been acted on. The problem with 

16 that is this. For example, in my ASARCO case, these 

17 documents were 80 years old. Some of them were --

18 yeah, basically 80 years old at the time, now they're 

19 almost 100 years old. Those documents were found in 

20 boxes from ASARCO, addressed to ASARCO from outside 

21 accountants and auditors, and then some internal 

22 documents. Whether or not they were acted on would be 

23 very, very difficult to prove.

24 PROFESSOR CAPRA: Well, isn't the whole 

25 point that they weren't acted upon? I mean, isn't 
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1 that your whole point?

2 MR. ROSSBACH: Well, presumably they may 

3 have been. There was some response to it, but what we 

4 were trying to show is that the cadmium, arsenic, et 

5 cetera, was coming from them and that they knew that 

6 there was a problem, and how much they had acted on 

7 it, it was less important because the fact of the 

8 matter was that in our neighborhoods we had cadmium 

9 arsenic at elevated levels, and one of the issues was 

10 where it came from, and ASARCO was actually even 

11 arguing that some of it was baseline.

12 So, you know, there's different reasons that 

13 those documents were used, but the point I'm making is 

14 is that how they were acted on creates maybe even a 

15 more insurmountable problem than some of the other 

16 issues.

17 You know, I don't have a problem with 

18 drafting a rule that's appropriate to ESI. I think 

19 it's a problem that's coming. I think I would agree 

20 that in some ways it may be a ticking time bomb, but 

21 the problem for me is is that total abrogation of 

22 803(16) without substantial justification at this 

23 point and not finding a way of dealing with ESI on a 

24 separate basis I think is in fact, as the quote comes 

25 from the Reporter, is it's a radical departure. It's 
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1 a radical solution. I think there are other ways of 

2 doing it, and I strongly urge the panel to keep 

3 803(16) exactly the way it is. I don't think you need 

4 to add the necessity component to it because that's 

5 part of the rule. Every one of the 803 exceptions 

6 essentially implies need.

7 If you look at Wigmore, if you look at 

8 McCormick, if you look at Wicks, if you look at the 

9 Advisory Committee notes themselves, Professor Mueller 

10 and Kirpatrick's notes from the report, every one of 

11 them say there's two essential elements of every 

12 single one of these 803 exceptions: lead, one, and 

13 circumstances indicating trustworthiness.

14 So I think that, you know, tinkering with 

15 803(16) is not the solution. Finding a solution to 

16 ESI, a separate, entirely distinct solution for ESI 

17 because it is different. ESI aren't documents. ESI 

18 are basically collections of digital, you know, X's 

19 and O's basically in combination to create digital 

20 information. I think they need to be dealt with 

21 separately, and I think we're smart enough, I think 

22 the members of this panel or creating a separate 

23 subcommittee, a task force to look into what do we do 

24 with ESI in terms of an evidentiary rule, I think we 

25 can come up with that. I'm confident that there is a 
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1 solution to ESI that doesn't entail abrogation of 

2 803(16).

3 PROFESSOR CAPRA: Thank you.

4 JUDGE LIVINGSTON: Thank you, Mr. Rossbach.

5 PROFESSOR CAPRA: Questions from the 

6 Committee?

7 (No response.)

8 PROFESSOR CAPRA: Okay.

9 MR. ROSSBACH: I don't know if that's good 

10 or bad.

11 JUDGE LIVINGSTON: No, your testimony is 

12 very helpful, and the explanation in the written 

13 submission was very clear on the stand of Mueller and 

14 Kirpatrick.

15 MR. ROSSBACH: Okay. Thank you. You know, 

16 and I made some comments somewhat denigrating 

17 Professor Capra, but it's not the issue.

18 PROFESSOR CAPRA: I don't feel denigrated.

19 MR. ROSSBACH: To me, the issue is that --

20 PROFESSOR CAPRA: Not at all.

21 MR. ROSSBACH: Okay. I don't think they 

22 were -- I mean, we could argue that every single one 

23 of the 803 exceptions was wrong or based on a false 

24 premise. I just think that 803(16) is really no 

25 different at bottom from many of the other 803 
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1 exceptions. And so why start radically abrogating one 

2 rule when we have a separate and distinct problem with 

3 ESI? I concede that. We need to deal with ESI on its 

4 own merits. Thank you.

5 PROFESSOR CAPRA: Thank you.

6 JUDGE LIVINGSTON: Thank you.

7 PROFESSOR CAPRA: Judge, shall we proceed to 

8 the next witness?

9 JUDGE LIVINGSTON: Yes.

10 MR. ROSSBACH: Excuse me, but I'm also 

11 suffering from travel constraints, so I may not be 

12 able to stay on very long myself. Thank you again for 

13 giving me the opportunity.

14 PROFESSOR CAPRA: Thank you.

15 JUDGE LIVINGSTON: Thank you very much.

16 PROFESSOR CAPRA: We now go to Lance 

17 Pomerantz.

18 MR. POMERANTZ: Yes. Hello?

19 PROFESSOR CAPRA: Hello.

20 MR. POMERANTZ: Hello, can you hear me?

21 PROFESSOR CAPRA: I can hear you.

22 JUDGE LIVINGSTON: Yes.

23 PROFESSOR CAPRA: You're good.

24 MR. POMERANTZ: Okay. I'm a little unsure 

25 about the mute button on my phone. I apologize.
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1 My name is Lance Pomerantz. I'd like to 

2 thank the Chair and the Committee for the opportunity 

3 to testify today. My perspective on this is a little 

4 different, in fact, I think significantly different 

5 than any other of the submitted comments. I did, by 

6 the way, submit comments to the Committee. I hope the 

7 Committee has had the opportunity to read through 

8 them.

9 First, a little bit about my background. 

10 I'm an attorney in private practice up in New York. I 

11 focus entirely on land title law, and I've been 

12 litigating in both state and federal courts for about 

13 35 years as an advocate but also as an expert witness, 

14 again, in land title cases. I also maintain a 

15 litigation consulting practice which is nationwide in 

16 scope both on the federal and state levels.

17 I currently hold committee appointments with 

18 the New York State Bar Association, Suffolk County Bar 

19 Association, American Land Title Association, and the 

20 New York State Land Title Association, but I want to 

21 stress that my comments today are entirely my own and 

22 do not reflect, necessarily reflect any of those 

23 organizations or any of my clients.

24 My perspective on this is from the viewpoint 

25 of someone who is concerned about proof of title in 
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1 land title cases, and as I pointed out in my written 

2 comments and echoes the Committee's findings, one 

3 uncontroversial point about the 803(16) exception was 

4 that it was originally intended to cover property5 related cases to ease proof of title and that in fact 

6 it was expanded over time both through the rulemaking 

7 process as well as through court rulings to apply to 

8 other forms of evidence in cases having nothing to do 

9 with land title litigation. And I'm very concerned 

10 that a complete abrogation which does not take into 

11 account the traditional role of the rule in these 

12 kinds of cases could have many unintended consequences 

13 that would really hobble litigators who are involved 

14 in trials of these kinds of matters.

15 I did point out in my written comments, 

16 which I will just quickly echo here, which is the fact 

17 that the fact that there isn't a flood of reported 

18 cases or even obvious motion practice concerning the 

19 applicability of this rule in these kinds of cases 

20 should not be taken as evidence of its invalidity or 

21 lack of vitality. I think it is something that comes 

22 up so regularly and basically passes without remark by 

23 either party because it is so firmly embedded into the 

24 trial of land title matters. I don't know if you 

25 would like me to continue.
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1 PROFESSOR CAPRA: No. I mean, whatever you 

2 want.

3 MR. POMERANTZ: My written comments really 

4 summarize my position on this, and I'm happy to take 

5 questions from the Committee.

6 PROFESSOR CAPRA: Okay. Thank you.

7 Any questions from the committee members?

8 JUDGE APPEL: Yes. Brent Appel here. Tell 

9 us your view about 807 and how that would relate to 

10 what are currently ancient documents. I can tell you 

11 I've looked through our Iowa cases. We do have a 

12 couple that deal with land titles. One allowed an 

13 ancient plat into evidence, but wouldn't that come in 

14 under 807 or what are your concerns?

15 MR. POMERANTZ: Well, that's very possible. 

16 I've seen both from my perspective and from the wider 

17 perspective involving the toxic torts and the various 

18 other matters that many of the other witnesses are 

19 concerned about this approach of, well, what about 

20 other exceptions? Couldn't things come in under other 

21 exceptions? And in many, many cases, even focusing 

22 only on land title disputes, yes, obviously there are 

23 many situations where other exceptions to the hearsay 

24 rule might allow a particular piece of evidence to be 

25 admitted.
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1 The real discussion I think, the real debate 

2 here only really focuses on those marginal cases where 

3 no other hearsay exceptions are applicable or other, 

4 you know, non-hearsay determinations are applicable. 

5 The only time the ancient document rule really matters 

6 is when there is no other way to get it in.

7 And as far as your question specifically 

8 about 807, I'm concerned that using 807 in these sort 

9 of marginal cases could be perceived by trial court 

10 judges, and probably rightly so, as imposing a higher 

11 standard of reliability than 803(16) requires, and I 

12 think it would lead to a lot of needless motion 

13 practice and, quite frankly, maybe even the rejection 

14 of otherwise reliable and irreplaceable evidence that 

15 we don't have to deal with under the currently 

16 existing regime.

17 PROFESSOR CAPRA: Well, you know, I guess 

18 the easiest hearsay exception would be all hearsay is 

19 admissible. Then you wouldn't have any motion 

20 practice, right?

21 MR. POMERANTZ: Well, if the --

22 PROFESSOR CAPRA: The question is where you 

23 draw the line.

24 MR. POMERANTZ: No, I understand that. I 

25 mean, if the Committee, you know, feels that it should 
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1 go in that direction, that's another debate that we 

2 would have. But I think that the history of the 

3 ancient documents exception within the context of land 

4 title litigation is very firmly established. I mean, 

5 there are cases that go back to the 1600s in England 

6 that talk about the reliability of various ancient 

7 documents.

8 Now, to be fair, many of those cases do 

9 involve documents that would come in under other 

10 exceptions within the current modern-day regime, but 

11 my underlying point is that the need for ancient 

12 documents to come in in land title disputes has been 

13 recognized literally since ancient times and has been 

14 continually recognized over time both subsequent in 

15 the everyday context and even in the more formal 

16 context, such as the Federal Rules of Evidence, such 

17 as the changes made to the Uniform Rules of Evidence, 

18 you know, to bring them in line with the Federal Rules 

19 in the early '70s.

20 I am expressing no opinion as to the policy 

21 choices that pertain to the toxic tort and the other 

22 cases that I realize people are very concerned about.

23 PROFESSOR CAPRA: It would be very useful to 

24 get your comment because, you know, the land title I 

25 guess part of this is one that is an interesting thing 
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1 to think of and how to deal with that as a part of it, 

2 and it's the only comment that I think we received 

3 that focuses on that problem, so it's been very 

4 useful.

5 MR. POMERANTZ: Right. Well, I'm glad to 

6 hear you say that because that was my primary point, 

7 to get the Committee to focus on, in fact, its own 

8 observations and its own conclusions concerning the 

9 origin --

10 PROFESSOR CAPRA: Yeah.

11 MR. POMERANTZ: -- of the rule and the need 

12 for the rule in these kind of cases. And I would 

13 conclude by saying that regardless of what the 

14 Committee decides concerning the rule in connection 

15 with ESI and these other types of cases, I think 

16 whatever the final result is, whether it's doing 

17 nothing or whether it's some sort of modification of 

18 the rule, that the Committee's final determination 

19 should take into account the fact that this is 

20 critical from the land title perspective and its use 

21 in that context should be preserved.

22 PROFESSOR CAPRA: Thank you.

23 MR. POMERANTZ: Thank you.

24 JUDGE LIVINGSTON: Thank you very much.

25 PROFESSOR CAPRA: Any further questions?
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1 MR. COLLINS: Mr. Pomerantz, this is Dan 

2 Collins. I'd be curious to get your reactions to the 

3 suggestion that Professor Capra raised earlier about 

4 grandfathering. Would the concerns that you have be 

5 satisfied if the abrogation were made prospective only 

6 to documents created after today?

7 MR. POMERANTZ: That's something that I was 

8 sort of intrigued by when Professor Capra mentioned it 

9 a few minutes ago. I haven't really been able to 

10 digest it in the context of this call. It's something 

11 that I might consider. I think that this is less of 

12 an issue now from my perspective for going forward 

13 from here, but at this point I can't sign off, you 

14 know, one way or the other, but I think it's something 

15 that's worthy of consideration.

16 PROFESSOR CAPRA: Could you say why? I'm 

17 sorry. Could you say why it's less of an issue? Is 

18 there something electronic or something that's going 

19 to change going forward in your practice?

20 MR. POMERANTZ: Well, I think that many

21 of -- I can only speak from experience and, again, the 

22 extreme marginal cases where the only exception is the 

23 ancient documents exception have tended to be really 

24 unusual matters.

25 PROFESSOR CAPRA: Uh-huh.
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1 MR. POMERANTZ: In fact, in my written 

2 comments, I specifically talk about a captain's log 

3 from a 19th century whaling vessel that proved to be 

4 the critical link in the chain that would otherwise 

5 have been inadmissible.

6 PROFESSOR CAPRA: You're probably not going 

7 to see much more of that, I assume, right?

8 MR. POMERANTZ: I'm sorry?

9 PROFESSOR CAPRA: You're probably not going 

10 to see many more cases like that, the captain's log.

11 MR. POMERANTZ: Well, I think part of where 

12 I'm going with this, and I'm sort of thinking as I'm 

13 speaking, is that so many more things nowadays and 

14 let's just say within the last, I don't know, several 

15 decades have become so much more routinized. Thinks 

16 like captains' logs now are clearly kept in a much 

17 more routine way and a much more formalized way so 

18 that they would clearly be things like business 

19 records, et cetera.

20 PROFESSOR CAPRA: Right.

21 MR. POMERANTZ: Things like family Bibles 

22 are clearly admissible under other exceptions. That's 

23 another area that pops up quite a bit in my practice. 

24 I freely admit that the number of situations even now 

25 where this particular exception is critical are very 
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1 few and far between, but as I point out in my written 

2 comments, one of the issues that I am constantly 

3 dealing with from a strategic perspective is the so4 called known/unknown where there's always going to be 

5 something that's going to pop up of a certain vintage, 

6 but we can't predict what it is.

7 I think that the chance of that happening 

8 going forward is probably even less than it's been 

9 historically, which is why a grandfathering might be 

10 something I would consider, but again, I have to 

11 reserve my final comment on that until I've had a 

12 chance to digest the implications.

13 PROFESSOR CAPRA: Thank you.

14 JUDGE LIVINGSTON: Thank you so much for 

15 your testimony.

16 MR. POMERANTZ: You're quite welcome. Thank 

17 you.

18 PROFESSOR CAPRA: The next speaker is David, 

19 do I have this right, Romine?

20 MR. ROMINE: Yes, you do, Professor. Thank 

21 you.

22 PROFESSOR CAPRA: Okay, thanks. Go ahead, 

23 David.

24 MR. ROMINE: Sure. Thank you to the 

25 committee members and Professor Capra. I think I'm 
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1 not going to go through my written submission which I 

2 hope you've had a chance to look at.

3 I agree with Professor Capra's article that 

4 the first witness talked about. I guess in terms of 

5 the facts, I disagree with the conclusions that 

6 Professor Capra comes to. I think that the ancient 

7 documents exception to the hearsay rule is good. We 

8 need it. We shouldn't eliminate it absent a showing 

9 that it's causing problems now.

10 The preliminary draft shows no cases where 

11 there was obviously unreliable evidence that was 

12 admitted because the Judge's hands are tied by an 

13 unnecessarily lax rule of admission, and we can't 

14 extrapolate from that that there will be unreliable 

15 evidence admitted under the ancient documents 

16 exception even for ESI.

17 And my third and final point absent 

18 questions is I do have confidence in the ability of 

19 federal Judges to determine what's reliable and what's 

20 unreliable. I couldn't find any cases where ESI was 

21 proffered as an ancient document. I'm sure there will 

22 be, as Professor Capra predicts. But, you know, the 

23 Judges are smart and they can distinguish between 

24 reliable and unreliable evidence. I can't predict

25 what the doctrinal basis will be from case to case, 
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1 but our Judges will succeed in letting in reliable ESI 

2 evidence as ancient documents, and they will exclude 

3 unreliable ESI evidence not in spite of the ancient 

4 documents rule but because.

5 The looming problem, and I agree there's a 

6 problem, but the looming problem is not like a natural 

7 disaster that we have to build a wall or take 

8 emergency measures for an earthquake. These decisions 

9 are all decisions made by federal Judges, and their 

10 hands are not tied and they can make the right 

11 decision with or without ESI.

12 So, with that, you know, not to belabor any 

13 points that were made well by the previous witnesses, 

14 I'll stop and, you know, invite questions from the 

15 Committee.

16 PROFESSOR CAPRA: Any questions from the 

17 Committee?

18 JUDGE LIVINGSTON: This is Debra Livingston. 

19 Given your comments, I mean, what would be the 

20 particular concerns with reliance on the residual 

21 exception? It's history, inconsistent application, 

22 what we've heard before this morning.

23 MR. ROMINE: Right. I guess the main 

24 concern that I have with the residual exception is 

25 that Judges don't like it, and I think I put in my 
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1 comments that I could find only one case where a 

2 member of the Committee, you know, proved or admitted 

3 evidence on it, and Judges just don't like the 

4 residual exception. And even where a document or a 

5 piece of ESI I suppose is reliable, I think that some 

6 Judges and many litigators kind of roll their eyes 

7 when something's proffered under the residual 

8 exception, and rightfully so, because it's viewed as a 

9 last resort.

10 And so I think with the residual exception 

11 things that are reliable aren't going to get in just 

12 because it's such a high standard. And the other 

13 thing that was, I think, raised by Judge Appel 

14 earlier, I can't remember, is that there will be 

15 inconsistent application of ancient documents under 

16 the -- if the -- I'm sorry. There will be 

17 inconsistent application under the residual exception 

18 if the ancient documents exception is abrogated. I 

19 don't see that as quite a big problem as the fact that 

20 it's such a high standard.

21 JUDGE LIVINGSTON: Mm-hmm.

22 PROFESSOR CAPRA: Any other questions?

23 (No response.)

24 PROFESSOR CAPRA: Are we ready to move on, 

25 Judge Livingston?
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1 JUDGE LIVINGSTON: I think so. Thank you 

2 very much for your testimony.

3 MR. ROMINE: Thank you very much, and with 

4 your permission I'll sign off.

5 PROFESSOR CAPRA: Thank you.

6 JUDGE LIVINGSTON: Thank you.

7 MR. ROMINE: Thank you.

8 PROFESSOR CAPRA: The next witness is 

9 Annesley DeGaris. Is that pronounced correctly? 

10 Annesley DeGaris? Have we lost him?

11 MR. DeGARIS: No, I'm sorry. I had my 

12 button on mute.

13 PROFESSOR CAPRA: Oh, okay.

14 MR. DeGARIS: And I was trying to take the 

15 mute button off. I am actually traveling towards 

16 Virginia. So, if there's any residual noise, 

17 background noise, I apologize.

18 PROFESSOR CAPRA: You're saying you're in a 

19 car right now? Is that where you are?

20 MR. DeGARIS: I am in a car right now and 

21 I'm taking my two older children to explore the 

22 advantages of schools in Virginia.

23 PROFESSOR CAPRA: Oh, that's great.

24 MR. DeGARIS: And so we're heading to 

25 beautiful Richmond.
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1 PROFESSOR CAPRA: Well, you're the first 

2 person in the history of Evidence Rules Committee 

3 testimony that's testified from a car, so you should 

4 be very proud of yourself.

5 MR. DeGARIS: Exactly, and I think, I don't 

6 know if this will be admissible in court, but maybe 

7 it's just my life I think is speeding right now.

8 But I'd like to thank Judge Livingston and 

9 other members of the Committee for the opportunity to 

10 testify. Probably a little bit different perspective 

11 than some. I was a District Court law clerk for a 

12 fine federal Judge down in Alabama, had the 

13 opportunity to clerk in the Eleventh Circuit Court of 

14 Appeals, and I have taught constitutional law for 

15 about 17 years in various places, and I'm also a -- I 

16 guess what would sometimes in search that is a 

17 derogatory term nowadays a mass tort lawyer, and the 

18 majority of my cases are mass torts, which, as you 

19 would expect and know, involve massive amounts of ESI 

20 information.

21 And in my comments, which were brief, and 

22 I'm not going to go through everything that I said 

23 earlier in the comments submitted, but I would, you 

24 know, ask Judge Livingston and the committee members 

25 to look at my comments if they have an opportunity and 
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1 realize that, in my opinion, the abrogation of the 

2 rule, the total abrogation is a mistake.

3 And so I approached my comments kind of in 

4 the vein that change was likely to occur and so rather 

5 than abrogation, I submit that all the problems that 

6 have been raised by Professor Capra and others could 

7 be addressed with very minor changes to the rule. 

8 And, of course, in my comments, I quote and rely 

9 heavily on the comments by Professor Peter Nicholas in 

10 the article that he published, and he again said that 

11 -- I quoted him in my comments again, that abrogating 

12 this rule is the equivalent of using a sledgehammer to 

13 kill a gnat.

14 Again, coming from the deep South, I like 

15 little common quotes like that, and I do think, 

16 though, it illustrates just how overreaching and I 

17 think unnecessary a complete abrogation of this rule 

18 is. And again, if all the people that will be 

19 considering what to do haven't read Professor 

20 Nicholas' article, it's called "Saving an Old Friend 

21 From Extinction: A Proposal to Amend Rather Than to 

22 Abrogate the Ancient Documents Hearsay Exception."

23 PROFESSOR CAPRA: It's been submitted. It's 

24 been submitted by the Professor as a public comment. 

25 We've read it.
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1 MR. DeGARIS: I assumed it had, and I think

2 also the comments of Professor Roger Park have also 

3 been submitted and I know the New York Bar letter has 

4 also been submitted.

5 I argue, and because I don't want to be 

6 duplicative of what's in the Professor's article, I 

7 argue against abrogation and for amendment and 

8 specifically point to the things that the Professor 

9 raised in his article. I just think that when we look 

10 to modify or reject or make changes to long11 established rules, you know, again, coming from my 

12 background, working closely with Judges, does it 

13 fairly promote the administration and interest of 

14 justice, and I'm not sure that the abrogation of this 

15 rule does.

16 I, again considering my background, I trust 

17 Judges, as the previous commentator said on this call, 

18 to make the right decisions on the admissibility of 

19 evidence. I think they are the proper gatekeepers, 

20 and you're actually taking away, I think, some 

21 judicial discretion by completely abrogating these 

22 rules, and I'm concerned about, you know, what will 

23 happen to certain ESI documents at some point that may 

24 not be admissible or may be more difficult or will 

25 create a lot of, you know, additional motion practice, 
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1 which federal courts are inundated with it now and I 

2 know the Judges would acknowledge that.

3 And I would just argue that there are so 

4 many ways to shore up the trustworthiness 

5 requirements. I think Dr. Park, Professor Park 

6 suggested just adding a phrase, "unless it lacks 

7 trustworthiness", just add that to the rule, then you 

8 likely address it and given Judges definite direction 

9 on examining the rule and examining admissibility, 

10 which, you know, I think that would cover any 

11 questions or concerns that exist again as far as ESI 

12 goes.

13 And so again I guess in some of my comments, 

14 there's been so much said already I don't want to 

15 reiterate what other people have said, but my comments 

16 are basically in favor. If you're going to take some 

17 action on this, I would argue that there are plenty of 

18 amendments that can be made rather than just complete 

19 abrogation of the rule.

20 PROFESSOR CAPRA: Thank you.

21 Any questions from the committee members? 

22 Well, I should add, or liaisons, if there's any 

23 questions from anybody on the call.

24 JUDGE LIVINGSTON: This is Debra Livingston. 

25 Let me thank you for your comments, which I have 
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1 reviewed, and they're very helpful, and for the 

2 endorsement of Professor Nicholas' article. I have to 

3 ask you, where are you from in the South?

4 MR. DeGARIS: I am from Birmingham, Alabama. 

5 So for all the football fans on the call I've just 

6 got to say "roll tide", and it's probably a phrase 

7 that has also never been uttered, so I've got two 

8 firsts: from a car and injecting football into 

9 something that is otherwise considerably more 

10 important matters, but I am from Birmingham, Alabama. 

11 That's my home, and after I worked several places, 

12 lived overseas for a year, ended up back down here.

13 JUDGE LIVINGSTON: Well, I had to say 

14 because I was born in Waycross, Georgia, and I went to 

15 fourth grade in Birmingham, Alabama.

16 MR. DeGARIS: Well, listen, I'm a very much 

17 -- I'm not a xenophobe, but I like the South. You 

18 know, I lived overseas, I lived here and there, and 

19 it's a good place, and every time my friends from up 

20 North, which is a lot of the lawyers that I deal with, 

21 come down here, they get a different perspective, and 

22 having recently spent some time in New Jersey, I have 

23 a different perspective on my own stereotyping of 

24 different regions of the country. I went to a little 

25 town outside of actually Newark of all places, and I 
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1 thought I was in a Norman Rockwell town, a southern 

2 town of the '50s the people were so nice. So it's 

3 glad to know that there's another southerner on the 

4 call.

5 MALE VOICE: More than one.

6 MR. DeGARIS: Oh, we got. Good. Good.

7 JUDGE LIVINGSTON: Thank you so much for the 

8 testimony.

9 MR. DeGARIS: Thank you for the opportunity.

10 PROFESSOR CAPRA: Drive safely.

11 MR. DeGARIS: Thank you.

12 JUDGE MARTEN: If I could for just a moment. 

13 This is Tom Marten from Wichita, and I was wondering, 

14 what Judge did you clerk for in Alabama?

15 MR. DeGARIS: I clerked for the Honorable 

16 E.B. Holton. He was a candidate for lieutenant 

17 governor and very involved in Democratic politics, and 

18 a guy that people on this call probably know, Howell 

19 Heflin was a very powerful and influential Senator 

20 from Alabama. In fact, unfortunately, most people may 

21 know him, one time he was in a committee hearing and 

22 pulled out his handkerchief out of his coat pocket to 

23 wipe his nose and he had unfortunately grabbed a pair 

24 of his wife's undergarments instead of a handkerchief 

25 and was using it to wipe his nose. But he was a very 
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1 powerful Judge and appointed E.B. Holton, Jr. was his 

2 name, to the bench. He was a Carter appointee in the 

3 '80s.

4 JUDGE MARTEN: Well, the reason I ask is 

5 because my significant other is Judge Sharon Lovelace

6 Blackburn of the Northern District.

7 MR. DeGARIS: Oh, I love Judge Blackburn. 

8 So that's interesting. Yes, I know her quite well.

9 JUDGE MARTEN: Well, it's a pleasure to hear 

10 from you. Thank you.

11 MR. DeGARIS: Yes, sir, thank you.

12 PROFESSOR CAPRA: Thank you. We'll proceed 

13 to the next witness, who is Mark Weingarten.

14 MR. WEINGARTEN: Yes. Good morning, Judge 

15 Livingston, members of the Committee. I appreciate 

16 this opportunity to offer these oral comments in 

17 supplementation of the written submission that I have 

18 already sent in.

19 I am a partner in the Locks Law Firm, 

20 primarily in our Philadelphia office. I represent 

21 injured men and women and only injured men and women 

22 and have been doing this for just a little bit shy of 

23 40 years. I also am privileged to serve on the Board 

24 of Governors of the American Association for Justice 

25 and also the Pennsylvania Association for Justice, but 
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1 I do need to clarify that the comments that I have 

2 both written and which I'm about to offer are really 

3 offered on behalf of myself and not on behalf of my 

4 firm or the organizations that I'm a member of.

5 I think one of the advantages perhaps of 

6 going a little bit later in the group is that it gives 

7 me an opportunity to maybe circle back and clarify a 

8 couple of questions or points that I think I might be 

9 able to help with that were asked of earlier 

10 witnesses, and the one that I wanted to mention, which 

11 is also discussed actually in my written submission, 

12 and I believe it was either Professor Capra or Judge 

13 Appel who asked my dear friend, Rob Gordon, earlier on 

14 about the Sumner Simpson papers, the asbestos letters 

15 that went back and forth between the president of the 

16 Raybestos-Manhattan Company and the General Counsel, 

17 Vandiver Brown, of the Johns Manville Corporation, 

18 both asbestos manufacturers after the turn of the 

19 century.

20 I think the question was whether or not 

21 these would not be admissible as party opponent 

22 statements, and to clarify, they almost by definition 

23 cannot be because the companies that were involved in 

24 the writing and the sending and the receiving of those 

25 letters and correspondence are in bankruptcy, and so 
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1 they can really never be a party opponent, they can 

2 never be part of a litigation lawsuit context, but 

3 rather, the documents are used against other parties 

4 who did not either -- were not signatories to the 

5 documents to show the state of the art, not so much 

6 what they knew, but the argument is that if Johns 

7 Manville knew and if Raybestos-Manhattan knew, then 

8 why doesn't Company ABC or Company XYZ know as well.

9 PROFESSOR CAPRA: Right. So if I could ask 

10 a question about that then. So why isn't that 

11 admissible because it's not hearsay? Because the 

12 substantive principle is if somebody knew and the 

13 other party is deemed to have known, that's like the 

14 state of the art thing, correct? But the documents 

15 are offered to prove what this Sumner knew, is that 

16 right?

17 MR. WEINGARTEN: Yes.

18 PROFESSOR CAPRA: So that's not hearsay.

19 MR. WEINGARTEN: Not against Sumner Simpson, 

20 it's not.

21 PROFESSOR CAPRA: Right. But then it's not 

22 even an evidentiary principle as to how it's used 

23 against the other party. It's a substantive principle 

24 then because if Sumner knew, then the industry is 

25 deemed to know. That's not even an evidentiary 
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1 principle. I was wondering why you need the ancient 

2 documents exception in this circumstance. It seems to 

3 me that a lot of the comments are about trying to 

4 prove that, you know, the manufacturer knew, but my 

5 understanding is that's not hearsay at all.

6 MR. WEINGARTEN: No, it's not what they 

7 knew, but it's what's knowable, which is a different 

8 branch of the state of the art. There is no way to 

9 show they had full knowledge.

10 PROFESSOR CAPRA: I understand that, but 

11 that still means it's not offered for its truth but 

12 for knowledge. So I'm sorry. I didn't mean to 

13 interrupt you. Please keep going.

14 MR. WEINGARTEN: Okay. Thank you.

15 One would think from the comments that I 

16 think are what, I think 140 or so of them that have 

17 been posted thus far, that this abrogation or proposed 

18 abrogation of 803(16) only affects litigation, which, 

19 of course, I have done a great deal of, but much to 

20 the contrary.

21 In flipping through the comments and in 

22 thinking about the abrogation of the rule, really the 

23 effect of it would be much more widespread than 

24 asbestos alone. It would affect virtually all latent 

25 disease cases where the diagnosis is many years after 
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1 the exposure. It would affect toxic tort cases, 

2 benzine litigation, silica litigation, lead 

3 litigation, vinyl fluoride litigation. It would even 

4 be outside the personal injury context.

5 We heard a speaker earlier, Mr. Pomerantz, 

6 talk about its effect on real estate litigation, land 

7 transactions. It would affect qui tam litigation, 

8 whistleblower litigation. It would affect insurance 

9 disputes where the policies go back many, many years. 

10 It would affect institutional sexual abuse cases for 

11 minors where the events occurred very long ago and the 

12 documentation is in terms of the rules ancient.

13 So the context of it is much more broad and 

14 much more expansive than asbestos alone, although 

15 obviously it affects asbestos litigation a great deal 

16 as well.

17 But let me focus on something that I don't 

18 think has been discussed too much thus far, and that 

19 is if the rule is abrogated or changed what would 

20 happen in terms of the time we've spent on both the 

21 attorneys involved on both sides as well as the court 

22 system and the judiciary to deal with these previously 

23 admitted accepted hearsay documents.

24 Well, to begin with, we would have to start 

25 to try to take depositions to justify the 
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1 admissibility. We'd have to find a custodian or a 

2 signator or a declarant. We'd have to schedule the 

3 depositions. We'd have to travel to the depositions. 

4 We'd have to take the depositions and incur the time 

5 and the cost and the expense in whatever is involved 

6 in that, including, of course, court reporters.

7 And then what happens after the depositions? 

8 Well, then we start another round of satellite 

9 litigation on the admissibility of the documents, 

10 starting with motions, briefing, oral arguments, and 

11 then the necessity for judicial opinions, and then 

12 that brings us down to the bottom line, which is once 

13 we've had that satellite litigation we're going to 

14 then start to get rulings on documents, and this has 

15 been mentioned by some of the previous speakers, the 

16 rulings have the possibility of being inconsistent, 

17 which never helps litigants in any situation. I think 

18 that was the concern raised by Judge Appel earlier 

19 when he asked the question about Rule 807. So we have 

20 the risk of these inconsistencies, and then --

21 PROFESSOR CAPRA: Can I ask you a question 

22 about -- I'm sorry, I understand all these expenses, 

23 especially from the litigants. So just one question I 

24 had is we've been talking, the Committee has been 

25 talking about other possibilities of adding different 
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1 requirements rather than just an abrogation, but those 

2 would also require everything you're talking about, 

3 right? In other words, you'd still have to do all the 

4 workup and the motion practice and everything if you 

5 added, for example, a necessity requirement or a 

6 reliability requirement to the rule?

7 MR. WEINGARTEN: I think so. I think it 

8 would.

9 PROFESSOR CAPRA: Yes.

10 MR. WEINGARTEN: And actually that reminds 

11 me of, I think, a question that was asked about the 

12 residual exception. I think the question was, and, 

13 pardon me, I do not remember who posed the question. 

14 But wouldn't the residual exception help? And that's 

15 one of my problems with utilizing the residual 

16 exception, which is simply that it has a higher 

17 burden. It has just on its very face four criteria 

18 plus the notice criteria. So there are really five 

19 criteria depending upon how you count and how you read 

20 the criteria, whereas right now 803(16) is short, it's 

21 clear. You know, we're spending a lot of time and 

22 effort on 17 words. That's what 803(16) is. It's 17 

23 words that has engendered all of this comment and this 

24 work on behalf of all of us, the Committee and the 

25 lawyers involved and everyone else.
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1 I think the fact that it is indeed 

2 engendering such a great deal of attention, this 

3 brevity, shows how important the rule is. It's short, 

4 it's clear, it's not subject to interpretation, and 

5 it's one of the -- well, I guess this brings me to 

6 another point, which is that to my knowledge it's 

7 never been accused of being abused or misinterpreted 

8 or in any way, it's not been a problem. So, if it's 

9 not a problem, I'm not sure why we need to fix it.

10 And then that kind of brings me to the other 

11 area that I wanted to comment on which I don't think 

12 is addressed in my written presentation, and that is 

13 back just a few months ago, in December, we had a 

14 fairly significant revamp of the Federal Rules of 

15 Civil Procedure with respect to discovery, and I think 

16 that the overall reason for the conceptual approach 

17 that was taken to the amendments of the discovery 

18 rules is to reduce the cost and the time of litigation 

19 and make the process more efficient and to get cases 

20 to trial with less expense and less time. And one of 

21 the other approaches taken by those amendments to the 

22 discovery rules was to in fact try and reduce 

23 satellite litigation over documents.

24 So now what this proposed abrogation would 

25 do really runs somewhat contra to the philosophy of 
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1 the civil rules amendments and would now start to 

2 complicate the process for something that heretofore 

3 has been extremely simple and extremely workable.

4 So those were the comments that I wanted to 

5 make in addition to, of course, incorporating the 

6 written submission that I made, and I would be glad to 

7 answer questions that the members of the Committee 

8 might have.

9 PROFESSOR CAPRA: Any questions from the 

10 Committee?

11 (No response.)

12 MR. WEINGARTEN: In that case, I think

13 I'll --

14 PROFESSOR CAPRA: No, no. Sorry, I have 

15 one. Other witnesses have been asked about a 

16 grandfathering provision. Do you have an opinion on 

17 that?

18 MR. WEINGARTEN: As I understand it, is that 

19 with respect to prospective?

20 PROFESSOR CAPRA: No, no, the whole rule 

21 would be prospective. In other words, the change, the 

22 abrogation would be prospective. In other words, what 

23 could be qualified as an ancient document today could 

24 still be so, but after like a particular time then you 

25 couldn't use the ancient documents exception again.
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1 MR. WEINGARTEN: Yeah, I guess my problem 

2 with that, Professor, is why do it.

3 PROFESSOR CAPRA: So that ESI doesn't get 

4 admitted in the future.

5 MR. WEINGARTEN: Well, ESI is going to have 

6 to be treated differently, but I don't think that we 

7 have to throw the baby out with the bath water. In 

8 other words, the ancient document rule has worked fine 

9 for what it's intended to work for, which is, of 

10 course, written papers. The written papers are, and 

11 we've heard this before, I think, earlier this 

12 morning, that they're written at a time when there's 

13 no need for subterfuge, there's no litigation 

14 involved, there's no anticipation of litigation, so 

15 there they have the reliability factor. On their 

16 appearance, on their face, they've not been tinkered 

17 with or monkeyed with in any way, so they have, you 

18 know, the authenticity factor, the reliability factor.

19 So I don't think that we need to change 

20 what's been working to date for a prospective change 

21 moving forward in the future to accommodate ESI.

22 PROFESSOR CAPRA: Thank you.

23 MR. WEINGARTEN: Thank you all. I 

24 appreciate this opportunity, and I will listen in for 

25 the remainder of this. I'll put my phone on mute.
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1 JUDGE LIVINGSTON: Thank you so much for 

2 your testimony.

3 MR. WEINGARTEN: You're very welcome, Your 

4 Honor.

5 PROFESSOR CAPRA: And our next witness is 

6 Tracy Saxe.

7 MR. SAXE: I'm here. Yes, thank you. I 

8 thank the Committee and Professor Capra for this 

9 opportunity.

10 It was mentioned in the previous person's 

11 testimony that among the different areas of law that 

12 might be relevant to this consideration is insurance 

13 coverage law, and that is my background. I've been 

14 practicing for 33 years, of which over 25 of those 

15 years I've been practicing exclusively on behalf of 

16 policyholders, mostly corporate policyholders, against 

17 insurance carriers on the issue of insurance coverage.

18 And the issue that this really addresses 

19 most, and I've had the experience in my own practice, 

20 is the fact that in many instances, since we are 

21 dealing with what I'll refer to as occurrence-based 

22 policies, the policies that are at issue in a long 

23 tail claim, like an environmental claim, an asbestos 

24 claim, many of the other types of things that were 

25 talked about on the call today, those claims are from 
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1 a long time ago, and the occurrence that we're trying 

2 to cover is from a long time ago and therefore the 

3 policy itself is from a long time ago.

4 And often the corporation that's seeking 

5 coverage from an insurance company may not have the 

6 policy that was originally issued in the 1920s, '30s, 

7 '40s, '50s, whenever that relevant policy might be, 

8 and under these circumstances the burden of proof is 

9 on the policyholder to prove the existence of the 

10 coverage in the first instance before you get to 

11 anything else, and the background that is really a 

12 relevant fact, even though it's not an evidentiary 

13 issue, is that state law governs insurance policies 

14 and it governs insurance regulation, and there is no 

15 state, I think maybe an exception might be Washington 

16 State, is the only state that requires any period of 

17 time for insurance companies to retain their own 

18 policy.

19 So the insurance companies routinely do not 

20 have the policy that you're seeking coverage under, 

21 and what happens is we fall into an area that is 

22 sometimes referred to as policy archeology or better 

23 understood in the evidentiary world as secondary 

24 evidence as proof of the existence of a policy. If a 

25 policy itself is gone, you can try to prove the 
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1 existence of an old policy through secondary evidence, 

2 such as accounting records and check stubs, and we've 

3 had cases where there are accounting ledgers that show 

4 a policy number, shows the company name, and from some 

5 other information about the price of the premium that 

6 is paid, you can back into it with expert testimony to 

7 reconstruct the idea if this premium was being paid in 

8 1952 for this type of policy that has that type of 

9 policy number, we know that the policy limits would 

10 have been $25,000 for that primary policy or X amount 

11 for an excess policy, and all of this can be figured 

12 out because the insurance company was not required to 

13 keep their own policy.

14 If it were the policy itself that were found 

15 and to be admitted, that would be actually a party 

16 opponent's document and would be admissible anyway. 

17 The difficulty is is when it's going to be secondary 

18 evidence and records and particularly accounting 

19 records of people who are long dead or retired and 

20 gone who are not a party to the suit themselves, which 

21 is necessary to prove the existence of the policy.

22 The policyholder who paid their full 

23 premiums and gotten nothing in return until a claim 

24 came in and now expects to get their end of the 

25 bargain, their entire substantive rights will 
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1 disappear if it turns out that you cannot prove the 

2 existence of the policy because this evidence would 

3 now be considered hearsay that does not fall into an 

4 exception for the statement of a party, and without 

5 the ancient documents rule, because we're missing all 

6 the custodians, we would essentially be losing our 

7 entire substantive rights.

8 We think that this has a major effect in 

9 this regard on insurance coverage. I don't know that

10 there would be any inclination to make an exception 

11 for insurance coverage litigation in this regard, but 

12 certainly I don't think that's the intent of this rule 

13 is to give insurance companies a free ride and not 

14 have to live up to the benefit of the bargain that 

15 they made when they took the premiums.

16 PROFESSOR CAPRA: No, that is not the intent 

17 of the rule.

18 (Laughter.)

19 PROFESSOR CAPRA: I'm sorry, are you ready 

20 for questions or do you have anything further?

21 MR. SAXE: My paper talks in greater detail. 

22 It cites a particular case out of Massachusetts. I 

23 did note in my written comments that there really are 

24 very few cases on this subject. Oftentimes many of 

25 these cases, like most civil cases, do get settled 
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1 prior to trial. The evidentiary rulings that are 

2 going to take place are rarely documented, but that 

3 may be true for the evidentiary rules generally.

4 PROFESSOR CAPRA: Right.

5 MR. SAXE: There are many more cases that 

6 would be reflected, I think, in the actual case law 

7 out there on the subject that affect day-to-day 

8 practice and theory.

9 PROFESSOR CAPRA: Pardon my ignorance about 

10 this particular litigation, but doesn't the 

11 policyholder have evidence of payments or anything 

12 like that? Isn't that proper secondary evidence?

13 MR. SAXE: It is, but the question would be 

14 if I don't have -- if the custodian of records, say 

15 these are payments in the 1940s or '50s and I don't 

16 have the custodian of record of those payments, then I 

17 may not be able to get it in as a business record 

18 exception.

19 PROFESSOR CAPRA: But don't you have 

20 payments -- doesn't your client have payment records 

21 that they sent the payments or not?

22 MR. SAXE: That evidence would need to come 

23 in in order to prove the existence of the policy, yes. 

24 and I would have that information, but the question 

25 is, how would it be admissible?
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1 PROFESSOR CAPRA: Yeah, okay. Well, I'd 

2 have to think about that.

3 MR. SAXE: You've got to talk about the 

4 abrogation of the rule and that is that at the time 

5 that the company in play was primarily responsible for 

6 the creation of that document who might testify to be 

7 a business record is long dead or retired or gone to 

8 show that. That is why the effect of the abrogation 

9 of this rule is so devastating for policyholders in a 

10 lost policy circumstance.

11 PROFESSOR CAPRA: Okay. Questions?

12 JUDGE LIVINGSTON: This is Debra Livingston. 

13 Did you have an opinion about the grandfathering 

14 issue?

15 MR. SAXE: I've heard the question each time 

16 and I kept thinking about it. I don't see how the 

17 grandfathering really changes anything except maybe 

18 saves some current cases that are out there from the 

19 same problem, but it doesn't seem to be any reason why 

20 there is a theoretical difference. It's just that 

21 randomly cases in the future are going to get heard 

22 and the ones already existing don't get heard. But I 

23 don't see how it changes the substance of the issue.

24 Let me reflect on the idea that we deal with 

25 electronic evidence and ESI issues.
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1 JUDGE LIVINGSTON: Mm-hmm.

2 MR. SAXE: But I'm not seeing this as a 

3 difference with ESI. At some point in the future if 

4 we're 70 years from now when all the accounting 

5 records that they'll look back to are going to be on 

6 an electronic basis, to me, it'll be the exact same 

7 problem we always had, which was when it was paper 

8 documents we still won't have a custodian of records 

9 who was actually the person who made that document to 

10 be able to testify, and it'll be the same problem 

11 whether it's ESI or paper documents. I haven't had 

12 the experience with lost policies dealing with ESI 

13 because we're still looking way back in the past 

14 before that time.

15 JUDGE LIVINGSTON: Mm-hmm.

16 MR. SAXE: But it will be a problem in the 

17 future. So I don't see the grandfathering as a 

18 solution here.

19 PROFESSOR CAPRA: Okay. Any further 

20 questions?

21 (No response.)

22 PROFESSOR CAPRA: Thank you very much.

23 Oh, I'm sorry. I didn't mean to end it. 

24 Judge, are we ready to move on?

25 JUDGE LIVINGSTON: No, I think so. Thank 
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1 you very much for your testimony.

2 MR. SAXE: I appreciate the opportunity. 

3 Thank you.

4 PROFESSOR CAPRA: And our next witness I 

5 believe -- it says Gary Brayton or Gil Purcell. I 

6 thought it was Gary Brayton who weighed in earlier. 

7 Is Gary Brayton here?

8 MR. BRAYTON: Yes, it is.

9 PROFESSOR CAPRA: Okay, Gary Brayton.

10 MR. BRAYTON: Thank you. I'd like to thank 

11 the Chair and the Committee for the opportunity to 

12 testify here this morning. I find myself being way 

13 down near the bottom of the list having the advantage 

14 and disadvantage of most of the points I wanted to 

15 make have been covered.

16 Our firm represents plaintiffs in toxic 

17 tort, primarily asbestos litigation. Our practice is 

18 largely in the California state courts, but we 

19 practice in other state courts and before the federal 

20 courts as well.

21 There are a few points I want to make. 

22 There's been the issue raised as to whether the kinds 

23 of documents, ancient documents are largely admissible 

24 under other provisions, and I should say that all of 

25 the documents that our firm deals with are ancient 
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1 documents because of the nature of asbestos being a 

2 latent disease, and thankfully very few people have 

3 been getting exposed to asbestos in the last 20 years, 

4 and I don't think any of them have gotten sick given 

5 the latency issue.

6 All of the documents are ancient documents 

7 and many of the documents indeed are admissible under 

8 other provisions. Lots of documents, business records 

9 are admissible under the business records exceptions 

10 because we are able to locate the necessary custodians 

11 or other foundational witnesses to qualify them as 

12 business records. Many of the documents are, as has 

13 been pointed out, admissible under various party 

14 opponent exceptions to the hearsay rule, but there's a 

15 very substantial number that don't meet any of those 

16 exceptions. They are business records, but the 

17 custodians cannot be identified or located. They're 

18 deceased because we're dealing with events that 

19 happened 30, 40, 50 or more years ago. The companies 

20 are defunct either through bankruptcy or simple 

21 dissolution or they have, you know, through the 

22 acquisitions, mergers, spinoffs, reorganizations that 

23 occurred for a lot of companies through the '70s, '80s 

24 and '90s, it's impossible to track back and locate the 

25 appropriate people.
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1 And I can give several examples of 

2 situations where they are not admissible as party 

3 opponents. Oftentimes it's records of a plaintiff's 

4 employer. They're clearly not going to be a party 

5 given the workers' compensation rules, and yet the 

6 business records may clearly indicate what asbestos7 containing products were being used by the business 

8 and by the plaintiff.

9 There are circumstances where there were 

10 manufacturers of products that had records that showed 

11 who the fiber supplier for their product was by virtue 

12 of formulation cards. Those cards weren't created by 

13 the party opponent, the fiber supplier. They're not 

14 available there, and the company itself is defunct and 

15 the foundational witnesses are unavailable to qualify.

16 There are circumstances where a manufacturer 

17 may have records and that is a fiber supplier. Johns 

18 Manville, as has already been commented, is long 

19 bankrupt, and yet evidence of to whom they shipped 

20 fiber is often of significance and again not available 

21 under any existing exception.

22 807 has been raised as a possible safety 

23 valve. My concern echoes that of other people that 

24 have already spoken. It is not merely that there is 

25 inconsistency in its application and a general 
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1 disfavoring of admission of evidence by 807, but we 

2 would now have the circumstance that 807, which is 

3 already regarded as a stepchild by many Judges and 

4 disfavored, an ancient document would enter that arena 

5 with the additional stigma of having its own exception 

6 having been abrogated. It would sort of become an 

7 illegitimate child, a stepchild, if you will, and I 

8 think the prospects of that evidence getting a fair 

9 and consistent shake amongst Judges with a history of 

10 the ancient documents rule being abrogated, I think 

11 the prospects would be dim.

12 From a selfish perspective, the suggestion 

13 that the importation into the ancient documents 

14 exception of a necessity requirement akin to 

15 807(a)(3), that would likely pose no particular 

16 problem to our firm's interests because I can't think 

17 of an instance where the kinds of documents that we're 

18 talking about could not meet that necessity standard.

19 I have not given full consideration to the 

20 extent to which that might be an unnecessary 

21 impediment to otherwise reliable useful information in 

22 other contexts, so I don't want to give it a general 

23 endorsement, but I certainly think it would be 

24 preferable to the abrogation at least from our 

25 perspective.
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1 PROFESSOR CAPRA: Okay. I mean, the whole 

2 point from most of the public comment is how necessary 

3 this is, so that's what you're saying, right? The 

4 very necessity of it is what would satisfy that 

5 requirement.

6 MR. BRAYTON: Yes. Right. And there was a 

7 question raised earlier about California's ancient 

8 documents provision --

9 PROFESSOR CAPRA: Uh-huh.

10 MR. BRAYTON: -- that has the additional 

11 requirement of -- that whatever it is that's being 

12 offered as an ancient document having been relied upon 

13 over the course of 30 years. That certainly provides 

14 an extraordinary level of reliability. I can't argue 

15 with that. But it's unnecessarily restrictive and, 

16 frankly, it serves to exclude very reliably a lot of 

17 the documents that we're talking about. Their 

18 reliability rests in the fact that the information 

19 being recorded is absolutely quotidian and mundane, 

20 and so the people have had no reason for anyone to be 

21 falsifying it.

22 You know, a company's records of who 

23 supplied materials to them, there's no -- you know, 

24 once those records exist, they're created. They're 

25 maintained over time. They have the -- I suppose 
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1 they're created and maintained because it might be 

2 useful for the company to discern that information at 

3 some later time, but it can hardly be said that it's 

4 relied upon. In fact, many of these records are 

5 probably created, put in a file drawer, and later 

6 boxed up, never looked at or relied upon again, but it 

7 doesn't impact their actual reliability one wit.

8 PROFESSOR CAPRA: It seems to me you'd be 

9 better off with the residual exception from a 

10 plaintiff's perspective because at least you could use 

11 other grounds of reliability. I mean, if you just 

12 have that one ground of reliability that's a condition 

13 of admitting it, there's a lot of reliable ancient 

14 documents that aren't going to be admitted. I mean, 

15 you're better off with the residual.

16 MR. BRAYTON: But there's nothing that 

17 prevents you from relying on both.

18 PROFESSOR CAPRA: That's right I guess. 

19 Yes. So you'd have to go through that for those 

20 anyway, yeah.

21 MR. COLLINS: Mr. Brayton, this is Dan 

22 Collins. I had a question just following up on that 

23 because, you know, I couldn't find any case law that 

24 interprets the California rule since its enactment, 

25 and I just was curious. Is it your experience that in 
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1 practice that additional California requirement does 

2 operate to exclude documents that otherwise would be 

3 admissible under say the federal version of the rule?

4 MR. BRAYTON: Yes, and, you know, excludes 

5 them, you know, so clearly that there's nothing to 

6 take up and get an opinion on. I could give an 

7 example recently of documents that we were able to 

8 locate in the California State Architect's archives.

9 The state architect oversees or maintains 

10 documents of past recruit plans and so forth for 

11 various public buildings, and the issue was who had 

12 been a contractor. We had a plaintiff that identified 

13 having been exposed by the operation, the activities 

14 of a contractor at the building of a school, but he 

15 didn't know who the contractor was.

16 The records of the state architect's office 

17 clearly indicated who the contractor had been. The 

18 records were in the nature of the bids and documents 

19 showing that, reflecting that bids had been accepted, 

20 but the acceptance was not a document created by the 

21 bidder. We didn't have a contract itself which would 

22 have been subject to other exceptions, and we could 

23 not otherwise -- the architect was the repository but 

24 not the entity that had created the documents. We 

25 weren't able to use it as under a business records 
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1 exception or a public records exception as California 

2 has it. And, of course, no one had relied on that 

3 document. It sat, you know, from the time at least 

4 that the contract was completed. No one had relied on 

5 it in the intervening time, so what was from our 

6 perspective anyway highly reliable information 

7 intending to identify who the contractor was, culpable 

8 contractor, was not admissible and there was nothing 

9 to -- we thought about could we appeal that, and we 

10 couldn't figure out a way that we could do that 

11 successfully.

12 MR. COLLINS: Now, in the bulk of the 

13 situations in state court where the ancient documents 

14 rule isn't available because of this restriction, are 

15 you able to get them in generally under other 

16 exceptions? What sort of percentage of the time --

17 I'm just trying to get a sense of what kind of the 

18 practical --

19 MR. BRAYTON: Well, there are, you know, 

20 there are circumstances where we, you know, 

21 desperately long to be operating under the Federal 

22 Rules because there are. We are as creative as we can 

23 be. We make efforts to -- you know, we go to 

24 extraordinary lengths sometimes to try to find -- the 

25 California rules don't require a custodian. There can 
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1 be, you know, another witness that -- so we try to --

2 we go as far as we can to bring them in under business 

3 records. We, where appropriate, as has been talked 

4 about with respect to the Sumner Simpson papers, we 

5 make arguments that the information that we are asking 

6 to be admitted is not hearsay for one reason or 

7 another, but there are many categories of documents 

8 that under California law and the California ancient 

9 documents provisions fall through the cracks.

10 JUDGE LIVINGSTON: May I ask have you given 

11 thought to -- this is Debra Livingston -- to what 

12 litigation may look like with the advent of 

13 electronically stored information? So postulating 

14 into the future, but in a world in which all of us are 

15 recording so much of our lives and using the written 

16 word in different ways and the postulate is creating a 

17 lot of, frankly, unreliable stuff that will be stored 

18 forever because it is so cheap to store.

19 MR. BRAYTON: Well, you know, again, 

20 selfishly, our tunnel vision has -- there is --

21 JUDGE LIVINGSTON: No, you're helping us 

22 understand the cases that you deal with.

23 MR. BRAYTON: Right, no, and there, you 

24 know, I can't think of, you know, electronically 

25 stored information that -- other than, you know, we 
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1 occasionally run into the circumstance of, you know, 

2 the only thing that remains of records is something 

3 that has been converted from what was previously a 

4 hard copy into electronic data of some sort.

5 But as far as the application of the ancient 

6 documents rule as it relates to electronically stored 

7 information going forward, I hadn't given that any 

8 thought until the comments began this morning, and so 

9 I don't think my input with that limited time to 

10 reflect are very valuable.

11 JUDGE LIVINGSTON: Well, your testimony has 

12 been very valuable. Thank you for the time.

13 Are there other questions?

14 (No response.)

15 PROFESSOR CAPRA: And our last witness is 

16 Mary Nold Larimore.

17 MS. LARIMORE: Thank you very much for the 

18 opportunity to talk with the Committee today.

19 I have been practicing law for 35 years, 

20 which I believe makes me officially ancient were I a 

21 doctor. I am a lawyer that has a national practice in 

22 product liability. I'm a Fellow in the American 

23 College of Trial Lawyers, a member of the 

24 International Association of Defense Counsel, Defense 

25 Research Institute, a member of Lawyers for Civil 
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1 Justice, a member of National Center for State Courts. 

2 I also had the privilege of serving the Chief Justice 

3 of the Indiana Supreme Court, Chief Justice Shepard, 

4 on the Rules Committee in Indiana for eight years and 

5 chaired that committee for four years. I very much 

6 appreciate the opportunity to present my comments 

7 which are my personal views relating to the ancient 

8 documents rules.

9 You know, I think I will just incorporate 

10 the letters that I previously sent to the Committee 

11 and really want to commend Professor Capra for what is 

12 a truly outstanding article addressing so many aspects 

13 of the issues that relate to the ancient document 

14 rule.

15 This first came upon my radar screen 

16 interestingly when I decided to take an afternoon and 

17 walk down and observe a trial that was getting a lot 

18 of notoriety in Marion County. It was the first 

19 premises liability asbestos case that had gone to 

20 trial in the state and had some well-known trial 

21 lawyers in it, and our firm had a couple clients in 

22 the first few days that settled out.

23 And so I had gone down expecting actually to 

24 see an expert testify and instead spent the entire 

25 afternoon watching stacks of documents go in under the 
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1 ancient document rule, and it was a very eye-opening 

2 experience for me because it was like literally 

3 anything that had been in the library. There would be 

4 like copies of the title of the book. There would be 

5 the copyright page as to when it was copyrighted and 

6 excerpts of books and articles and periodicals, and 

7 all sorts of things that went in, including, you know, 

8 unrelated documents that weren't necessarily, you 

9 know, in the library. And I had never seen 

10 documentary evidence despite, you know, pretty 

11 extensive trial history go in that way. They 

12 typically go in through witnesses who are able to 

13 testify as to their reliability, their authenticity.

14 You know, while the other speakers have been 

15 presenting I actually pulled up Rule 703 because I 

16 think that it's particularly relevant to many of the 

17 arguments that we've heard that these old documents 

18 are necessary to prove what was known or knowable, and 

19 I think that was knowable to a company at a particular 

20 point in time. And, you know, from my perspective, 

21 that would be something that an expert would testify 

22 upon, and, you know, the proponent of that opinion 

23 could show the jury, you know, the actual specific 

24 facts and data upon which they were relying only if 

25 their probative value in helping the jury evaluate the 
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1 opinions substantially outweighs the prejudicial 

2 effects.

3 And I think that that's where I was coming 

4 from when I was observing this and really trying to 

5 understand how it is that an author, you know, with no 

6 knowledge or admission as to their credentials or 

7 their background or, you know, what they were basing 

8 upon, but as long as it was in a Library of Congress, 

9 you know, or as long as it had a date, because many of 

10 these weren't actual publications, as long as it had a 

11 date that was 20 years before it just automatically 

12 went into evidence, and the content of that document 

13 was automatically reliable, and then, of course, the 

14 burden shifts to the defense to try to attack it 

15 because it's automatically considered I guess content 

16 truthful if it's 20 years old, and that was a real 

17 surprise to me.

18 And I ended up following up with the defense

19 lawyers after the case ended to sort of, you know, ask 

20 questions about that just because I was very curious 

21 as to that process, and the defense firm had unleashed 

22 a whole army of paralegals into the Indianapolis 

23 Public Library, which was not very far from the 

24 courthouse, and it turned out that, you know, many of 

25 the documents, I don't know how many actually, but a 
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1 number of the documents actually weren't from books 

2 that they thought, that they said it was, et cetera, 

3 so they ended up sort of cleaning up the record as it 

4 relates to that.

5 But that was really kind of my initiation 

6 into somebody who was extensively using this 

7 particular rule, and it seems to me not be an 

8 appropriate way of introducing into evidence 

9 information that is reliable, probative, from an 

10 author who, you know, either had personal knowledge or 

11 from the business records that would indicate some 

12 sort of indicia of reliability other than, you know, 

13 just the dates.

14 So, you know, when I was listening to 

15 previous speakers talk about, you know, these mundane, 

16 you know, records that are kept in businesses, you 

17 know, those are all business records which would come 

18 in under the business exception and, you know, to my 

19 knowledge, the custodian of a business who produced 

20 this huge group of records does not have to be the 

21 custodian of the specific documents.

22 PROFESSOR CAPRA: Right.

23 MS. LARIMORE: Whether it's 50 or 80 years 

24 old, so that just doesn't make sense to me having 

25 tried, you know, lots of cases, including -- I've 
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1 never tried an asbestos case, but I've certainly tried 

2 toxic tort cases involving other chemicals, and I've 

3 just never seen that issue arise.

4 So, you know, from my perspective, you know, 

5 the particular abrogation, you know, proposal to do 

6 away with this rule couldn't come at a better time 

7 because I think when you look at the amount of 

8 information, I mean, I watched the afternoon of, you 

9 know, all of this information -- not all of it, but 

10 most of it was in the Library of Congress I guess.

11 Well, look at all of the information that's 

12 on the internet right now. Just because people are 

13 typing in information does not mean that they are 

14 reliable, that they are personal knowledge, that they 

15 have probative information that is admissible, you 

16 know, in a court of law. And I think, you know, when 

17 I was thinking about this in preparing my remarks and 

18 putting together the letter that I sent to the 

19 committee, I thought, well, you know, I could look and 

20 see, you know, what the Seventh Circuit, you know, 

21 when the Seventh Circuit has most recently addressed 

22 it, and I provided to the Court Mathin v. Kerry, 

23 actually, Secretary of State Kerry, I mean, it was an 

24 immigration case, and it was fascinating to me because 

25 in this particular case the State Department was able 
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1 to prove to the District Court that the documents 

2 which were dated more than 20 years old, you know, 

3 weren't reliable.

4 But the Seventh Circuit, you know, made it 

5 very clear that, you know, had they not been able to 

6 attack the authenticity of the documents, the content, 

7 you know, the ancient document rule assumes that once 

8 it's 20 years old it's authentic, that the content of 

9 that document is probative, and, you know, we don't 

10 all have a client with the resources of the State 

11 Department to address these issues, and it just seems 

12 to me that, as is the case with respect to the vast 

13 majority of evidence that's admitted at trial, it's 

14 the burden of the proponent of that evidence, you 

15 know, to lay a foundation and, you know, if the 

16 foundation is that it was, you know, found, you know, 

17 in an attic of a former, you know, employee who, you 

18 know, died X number of years ago, then, you know, I 

19 think that the federal rules already provide for, you 

20 know, establishing authenticity through those means.

21 But I think that when we look at what 

22 happens broadly with this rule, if any person, you 

23 know, that produces a document 20 years ago is 

24 presumed to have provided, you know, content, you 

25 know, probative, truthful, reliable information, and, 
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1 you know, I think that one doesn't have to spend but 

2 10 minutes on the internet to find out that that's 

3 just not -- that's an assumption that should not be 

4 made in a court of law.

5 And I think that with the coming of more and 

6 more electronic information that this is the 

7 appropriate time to do away with this rule, that if 

8 one wanted to do a grandfather, you know, I think one 

9 should change the 20 rule, 20-year rule to something 

10 that would be more like 50 or 60 or 70 because the 

11 reality is moving forward the vast majority of 

12 documents will be electronic, and I think that just 

13 being able to put in front of the Court the date of a 

14 document and then automatically presuming 

15 admissibility is not the way to go.

16 So I very much appreciate the opportunity to 

17 talk with the Committee. Again, I truly appreciate 

18 your forward thinking approach in terms of addressing 

19 this issue. I also wanted to say that I, you know, 

20 checked around with some lawyers and friends around 

21 the state to see if they had addressed this issue and 

22 if it had been a problem in litigation, and one of the 

23 lawyers that I work with in a different city, you 

24 know, immediately forwarded off to me a brief that 

25 reflected some of the exact same issues that I 
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1 witnessed and observed a number of years ago when I 

2 happened to walk into a courtroom to observe a trial.

3 PROFESSOR CAPRA: Any questions from the 

4 Committee?

5 MR. DeGARIS: Can a commentator make a 

6 comment? This is Annesley DeGaris again.

7 PROFESSOR CAPRA: Judge Livingston?

8 JUDGE LIVINGSTON: Yes, please.

9 MR. DeGARIS: I just have a question and 

10 it's just -- I mean, obviously I have a little bit 

11 different perspective having litigated toxic torts, 

12 especially in Anniston, Alabama, where Monsanto had a 

13 PCB plant having that perspective of some of the 

14 documents involved in that case, and it's just maybe a 

15 rhetorical question.

16 As far as the concerns that were just 

17 voiced, you know, all hearsay exceptions, you know, 

18 still have to have, including the ancient document 

19 exception, but the client still has to have spoken 

20 from personal knowledge at the time, and then also, 

21 you know, there's no allowances for hearsay within 

22 hearsay. Don't those two principles really provide 

23 limitations that basically limit the use of the 

24 ancient document exception that would address your 

25 concerns just raised?
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1 JUDGE LIVINGSTON: We can take that as an 

2 addendum, an additional comment.

3 PROFESSOR CAPRA: Yes. We don't want to 

4 debate.

5 MR. DeGARIS: Okay.

6 JUDGE LIVINGSTON: And, Dan, if you want to 

7 address that comment, you're welcome to, but I think I 

8 understand, we understand the comment, and thank you 

9 for that addition.

10 MR. DeGARIS: Great.

11 JUDGE LIVINGSTON: Can I just ask one 

12 question of the witness? Have you had experience in 

13 your practice with the residual exception? I know 

14 you've been on the line and so you've heard testimony, 

15 concern that that exception is applied in a grudging 

16 fashion by many District Courts in the opinion of 

17 several of the witnesses this morning.

18 MR. DeGARIS: And I expressed their same 

19 concern about --

20 JUDGE LIVINGSTON: Oh, no, I'm sorry, that 

21 was -- I'm sorry, that was to the current witness.

22 MR. DeGARIS: Oh, okay, I'm sorry. I 

23 thought that was to me, Your Honor. I apologize.

24 JUDGE LIVINGSTON: I'm sorry, I wasn't 

25 clear. Thank you for your comment, though.
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1 MS. LARIMORE: Yes, this is Mary. I have 

2 been thinking about that as I've been listening this 

3 morning and, you know, I can't honestly testify one 

4 way or the other on that.

5 JUDGE LIVINGSTON: Okay.

6 MS. LARIMORE: It seems like as I think 

7 through, you know, all of the different issues that 

8 arise with respect to admissibility, you know, I would 

9 say it's rare that I have, you know, been in a trial 

10 where I have seen a really crucial piece of evidence 

11 that one party or the other thought was extremely 

12 crucial that did not get admitted into evidence. So I 

13 really cannot say that there has been, you know, sort 

14 of that kind of disdain towards that particular 

15 exception, and I'd have to really look at the Seventh 

16 Circuit, you know, cases.

17 But one of the things I put in my letter is 

18 that just because you don't see a lot of cases coming 

19 up in a particular area doesn't necessarily mean that 

20 that, you know, hearsay exception isn't regularly 

21 used. What it means is that, you know, that isn't one 

22 of the issues that really was the focus of an appeal, 

23 and I think that this sort of automatic nature of this 

24 ancient document rule, you know, that's what I've 

25 observed was in my practice is it's automatic. If 
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1 it's 20 years old, it's automatic, and I think when 

2 you look at the case law that's what you see as well. 

3 Twenty years old, unless you're going to be 

4 successful in attacking authenticity, it's automatic, 

5 and I don't think it should be automatic. I don't 

6 think anything should be automatic.

7 PROFESSOR CAPRA: Any other questions?

8 JUDGE APPEL: Yes, one more. This is Brent 

9 Appel speaking. We've talked about 807 quite a bit 

10 today, but we haven't raised 403, and Rule 403, of 

11 course, allows the Court to exclude relevant evidence 

12 if it substantially outweighed unfair prejudice and so 

13 forth and so on. What role might that have? I mean, 

14 you describe what seemed to be kind of a mass bulk 

15 admission of lots of things. Do you think 403 is an 

16 avenue to address some of your concerns?

17 MS. LARIMORE: Well, it's a good question, 

18 and the reality is then the burden ends up being on 

19 the defendant to, you know, attack the credibility of, 

20 you know, each of the authors and to attack, you know, 

21 the specific probative value of each piece of 

22 evidence. And, you know, from my perspective, you 

23 know, the initial burden should be on the proponent of 

24 any piece of evidence to prove to the Court a special 

25 level of both authenticity and, you know, reliability 
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1 of the contents. And so that makes it very difficult, 

2 especially when you're talking about things that, you 

3 know, essentially anything in the library or anything 

4 on the internet going forward.

5 PROFESSOR CAPRA: Any other questions or 

6 comments?

7 (No response.)

8 PROFESSOR CAPRA: Judge Livingston, I turn 

9 to you.

10 JUDGE LIVINGSTON: Well, thank you very much 

11 for your testimony here today, Ms. Larimore. And I 

12 think that's our final witness this morning, is it 

13 not?

14 PROFESSOR CAPRA: Yes, that's the last one 

15 on the list, Judge.

16 JUDGE LIVINGSTON: Okay. So I know that we 

17 have a number of witnesses who have made it to the 

18 end, so I get an opportunity to thank all of you. 

19 This has been an extremely helpful morning, I think, 

20 for the Committee, and I expect my fellow committee 

21 members would second me in that. Thank you for taking 

22 the time, and it is a great help, of course, to the 

23 litigation system and to the public interest to hear 

24 from people who are interested in the rules and our 

25 continued thoughts about their reform. And I think 
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1 with that I will conclude today's hearing.

2 MS. LARIMORE: Thank you very much.

3 PROFESSOR CAPRA: So the committee members 

4 and liaisons, if you have the time, can we please stay 

5 on the line for just a couple minutes and whoever has 

6 reactions can speak. We just want to make sure 

7 everybody is off the line, although it is a public 

8 meeting.

9 Bridget, is there a way to figure this out?

10 MS. HEALY: No, unfortunately. Ask if they 

11 can comply with what you --

12 PROFESSOR CAPRA: Can you just ask?

13 MS. HEALY: Sure. Professor Capra just said 

14 if everyone who is not a committee member or a 

15 liaison, if you could please exit the hearing now, 

16 that would be great.

17 THE COURT REPORTER: Sorry. This is the 

18 court reporter. Just to check if you'd like to go off 

19 the record now.

20 PROFESSOR CAPRA: Yes, there's no need for 

21 recording this.

22 THE COURT REPORTER: Okay.

23 PROFESSOR CAPRA: Right, Judge, Judge 

24 Livingston?

25 JUDGE LIVINGSTON: Right. This is right.
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1 PROFESSOR CAPRA: Conversation among --

2 MS. HEALY: Yeah. Thank you for asking, 

3 Maya.

4 THE COURT REPORTER: Okay. Thank you. Have 

5 a great day.

6 (Whereupon, at 12:12 p.m., the hearing in 

7 the above-entitled matter concluded.)

8 //

9 //

10 //

11 //

12 //

13 //

14 //

15 //

16 //

17 //

18 //

19 //

20 //

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24 //

25 //
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REPORTER'S CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Advisory Committee on Evidence Rules

HEARING DATE: February 12, 2016

LOCATION: Washington, D.C.

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts.

Date: February 12, 2016

Maya Hester

Official Reporter

Heritage Reporting Corporation

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005-4018