Witness List and

Testimony & Comments

Public Hearing on Proposed Amendments to the

Federal Rules of Evidence

Judicial Conference Advisory Committee on Evidence Rules

February 12, 2016 

 TAB

Jonathan Redgrave, Redgrave LLP......................................................................................1

Robert J. Gordon, Weitz & Luxenberg................................................................................2

William A. Rossbach, Rossbach Law PC............................................................................3

Lance R. Pomerantz, Land Title Law ..................................................................................4

David Romine, The Romine Law Firm LLC.......................................................................5

Annesley H. DeGaris, DeGaris Law Group.........................................................................6

Marc P. Weingarten, Locks Law Firm.................................................................................7

Tracy Saxe, Saxe Doernberger & Vita, PC..........................................................................8

Gary Brayton or Gil Purcell, Brayton Purcell LLP............................................................9*

Mary Nold Larimore, Ice Miller LLP................................................................................10

* No Testimony or Comments Received
TAB 1

Jonathan M. Redgrave, Redgrave LLP
 

 Page | 1 

 

 

TO: The Judicial Conference Advisory Committee on Evidence Rules 

FROM: Jonathan Redgrave, Redgrave LLP 

DATE: February 5, 2016 

 

RE: Proposed Amendments to Federal Rules of Evidence 803(16) and 902 

 

I respectfully submit the following comments regarding the proposed amendments to the Federal 

Rules of Evidence.1 The views expressed in these comments are solely mine.2 I fully support the 

recommendations of the Advisory Committee to abrogate Rule 803(16) and to amend Rule 902. In 

addition, I suggest that the Advisory Committee, at a future date, consider amending Rule 803(6) to 

provide additional guidance to courts and practitioners alike regarding the “records of a regularly 

conducted activity” exception to the hearsay rule. 

Abrogating Rule 803(16). 

Under current Rule 803(16), an authenticated document may be introduced at trial or summary 

judgment for the truth of its content simply because the document was created more than 20 years 

earlier. As the Committee has observed, the “ancient documents” exception to the hearsay rule is 

based on need3

: ancient documents may be the only evidence pertaining to contentions about events 

that occurred so far in the past. An ancient document theoretically can be deemed more trustworthy 

because “age affords assurance that the writing antedates the present controversy.”4 But of course, a 

document does not become more reliable from one day to the next by having a birthday. There 

seem to be few cases that address this exception to the hearsay rule, and as far as I have been able to 

discern, it has only been applied to hard copy documents.5 Not surprisingly, the drawbacks of this 

exception accordingly have not been discussed extensively. As “terabytes and zettabytes” 6 of 

 

1 Unless otherwise stated, all references to the Rules herein refer to the Federal Rules of Evidence. 

2 My written submission and testimony reflect my personal views and do not necessarily represent the views 

of my firm or any of its clients. 

3 Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, May 7, 

2015 Memorandum re: Report of the Advisory Committee on Evidence Rules (“Advisory Comm. Mem.”) at 18. 

4 Fed. R. Evid. 803(16), Notes of Advisory Committee on Proposed Rules (1975). 

5 I have not found a single reported case in Westlaw’s Federal Cases databases in the last ten years that 

applies Rule 803(16) to email, ESI, electronic files, or digital records. Moreover, Daniel J. Capra has found 

that Rule 803(16) has been invoked to admit documents in fewer than 100 reported cases since the Federal 

Rules of Evidence were enacted. See D. Capra, Electronically Stored Information and the Ancient Documents 

Exception to the Hearsay Rule: Fix It Before People Find Out About It, 17 YALE J. L. & TECH. 1, 12 (2015). 

6 D. Capra, 17 YALE J. L. & TECH. 1, at 13 & n.46. 
2 | Page

electronically stored information (ESI) are turning 20 years old, however, it is paramount that the 

viability of the rule is reexamined. 

I share the Committee’s concern that “there is a real risk that substantial amounts of unreliable ESI 

will be stockpiled and subject to essentially automatic admissibility under the existing exception.”7 If 

the rule is not abrogated, litigants may seek to admit ESI that contains unreliable hearsay into 

evidence simply because the ESI is old enough to come within the ancient documents exception to 

the hearsay rule. The initial trickle will turn into a flood as the universe of ESI that reaches the 

magical 20 year milestone grows at an exponential rate.8

 The full impact of this geometric growth in 

old ESI is often not seen because, unlike boxes of 20 year old records that are kept despite their bulk 

and cost, enormous amounts of ESI can reside in the smallest of physical artifacts that store ESI 

that can be kept unnoticed in desks and closets for decades without appreciable physical storage 

costs and burdens. 

This very concrete risk of unintended consequences is not offset by the purported benefit. Reliable 

evidence contained in ESI can be admitted under other hearsay exceptions, principally the “records 

of a regularly conducted activity” exception codified by Rule 803(6) (if the requisites are met) and 

the residual hearsay exception codified by Rule 807. Unreliable evidence should not be admitted, 

whether it is in hardcopy or ESI regardless of age. Thus, the only practical effects of abrogating 

Rule 803(16) will be to require litigants to establish the reliability of ESI before offering it for the 

truth of its contents, and to prevent abuses of the ancient documents exception to the hearsay rule. 

Both results are desirable.9

I believe the foresight of the Committee should be commended and that the Committee should not 

wait for a foreseeable problem to come to fruition before acting. While I appreciate concerns raised 

in a number of comments that it might be difficult to assess the application of the “records of a 

regularly conducted activity” exception with the passage of time, I think those concerns are overstated because there are ways to meet the requisites of Rule 803(6) without a contemporaneous 

witness who had personal knowledge of the records being created and, in any event, the residual 

exception in Rule 807, among other exceptions, would also be available. Stated otherwise, I do not 

 

7 Advisory Comm. Mem. at 18. 

8 “From 2005 to 2020, the digital universe will grow by a factor of 300, from 130 exabytes to 40,000 

exabytes, or 40 trillion gigabytes (more than 5,200 gigabytes for every man, woman, and child in 2020). From 

now until 2020, the digital universe will about double every two years.” J. Gantz and D. Reinsel, The Digital 

Universe in 2020: Big Data, Bigger Digital Shadows, and Biggest Growth in the Far East. Available at 

http://www.emc.com/collateral/analyst-reports/idc-the-digital-universe-in-2020.pdf (visited January 5, 

2016). 

9 I also note that the concurrent addition of proposed Rule 902(13) and Rule 902(14) will enable substantial 

amounts of ESI (of any age) to become self-authenticating, which also weighs in favor of abrogating the 

hearsay exception for ancient documents. Stated otherwise, without abrogation, the changes to the 

authenticity rules would mean that enormous amounts of old ESI could be swept into evidence — upon 

certification by a qualified person – since the hearsay rule would not be a gate to admissibility. See Fed. R. 

Evid 803(16) (“Statements in Ancient Documents. A statement in a document that is at least 20 years old and

whose authenticity is established.”) (emphasis added). 
3 | Page

believe that the absence of the ancient documents exception to the hearsay rule will lead a Federal 

Court to exclude otherwise reliable evidence from the distant past upon a proper proffer of the 

evidence. 

Amending Rule 902 by adding subsections (13) and (14). 

Current Rule 902 identifies documents that can be admitted at trial without being authenticated by a 

witness. Self-authenticating evidence is admissible without extrinsic evidence of authenticity 

“sometimes for reasons of policy but perhaps more often because practical considerations reduce 

the possibility of unauthenticity to a very small dimension.”10 Most of the items listed in Rule 902 

are self-authenticating on their face. Others, such as certain records of a regularly conducted 

activity, are self-authenticating only to the extent the party seeking to introduce them into evidence 

certifies their authenticity, and provides notice to the opposing party to give them a fair opportunity 

to challenge the certification (Rule 902(11) & Rule 902(12)). In conjunction with the amendment of 

Rule 803(6) in 2000, the enactment of Rule 902(11) streamlined the process by which business 

records whose authenticity should rarely be disputed could be admitted into evidence under the 

“records of a regularly conducted activity” exception to the hearsay rule.11

The Committee proposes to amend Rule 902 by adding two categories of self-authenticating 

electronic evidence: certified records generated by an electronic process or system, and certified 

data copied from an electronic device, storage media, or file.12 As with certified copies of business 

records, certified copies of these types of electronic evidence should rarely be the subject of a 

legitimate authenticity dispute. Shifting the burden of questioning the authenticity of such records 

to the opponent of the evidence (who will have a fair opportunity to challenge both the certification 

and the records themselves) will streamline the process by which these items can be authenticated, 

reducing the time, cost, and inconvenience of presenting this evidence at trial or on summary 

judgment. The proponent of the evidence will continue to bear the burden of establishing a prima 

facie case that the ESI is what it purports to be, and of establishing authenticity if challenged, but 

will not need to go through the expense and inconvenience of using a witness to establish 

 

10 Fed. R. Evid. 902, Notes of Advisory Committee on Proposed Rules (1975). See also In re Miller, 2012 WL 

6041639, at *7 (Bankr. D. Colo. Dec. 4, 2012) (“Rule 902 strikes a balance in favor of self-authentication for 

certain enumerated evidence because the likelihood of fabricating such evidence is slight versus the time and 

expense which would be required for authentication through extrinsic evidence. When a self-authenticating 

document is offered under Rule 902, the proponent is relieved of the requirement to lay foundation or 

present testimony through a witness. In other words, if a document is self-authenticating, the general 

authentication requirement of Rule 901 is deemed satisfied.”); Leo v. Long Island R. Co., 307 F.R.D. 314, 325 

(S.D. N.Y. 2015) (in rejecting the applicability of Rule 902 to videotapes, the court explained that “the 

drafters of the Federal Rules of Evidence anticipated that, in specified circumstances, certain types of exhibits 

may be so evidently that which the proponent claims them to be that they may be deemed authentic without 

extrinsic evidence.”); United Asset Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008, 1052 (N.D. Ill. 2006) 

(describing new Rule 902(11) as “[o]ne of the most useful (though perhaps least noticed) accomplishments” 

of the Committee during that court’s tenure, and lamenting that “[t]oo few lawyers have caught up with that 

valuable amendment[.]”). 

11 See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 552 (D. Md. 2007). 12 Advisory Comm. Mem. at 21-22 discussing proposed new subsections (13) and (14). 
4 | Page

authenticity in the first instance. And of course, the opponent will be able to object to the 

admissibility of the evidence on any applicable ground. The proposed amendment will lead to 

increased efficiency without sacrificing the integrity of the Rules of Evidence. 

Future Consideration: Assessing Rule 803(6). 

I respectfully suggest that the Committee consider, at some future date, an effort to reassess the 

language and operation of the “records of a regularly conducted activity” exception as it applies to 

the ever growing world of ESI. In relevant part, the “records of a regularly conducted activity” 

exception to the hearsay rule applies to records of a regularly conducted activity, made at or near the 

time by, or from information transmitted by, a person with knowledge, if kept in the course of a 

regularly conducted activity, and if it was the regular practice of that business activity to make the 

records, all as shown by the testimony of a custodian or other qualified witness, or by certification 

that complies with Rule 902(11), unless the source of information or the method or circumstances 

of preparation indicate a lack of trustworthiness.13 The basis for this exception to the hearsay rule is 

that “business records are reliable due to the qualities of regularity of record-keeping, the fact that 

they are relied upon in business, and the fact that employees have a duty and incentive to produce 

reliable records.”14 

Although the elements of the exception are articulated uniformly by courts, they are applied 

inconsistently, as noted by Judge Paul Grimm in his 2007 decision in the Lorraine v. Markel case: “The 

decisions demonstrate a continuum running from cases where the court was very lenient in 

admitting electronic business records, without demanding analysis, to those in which the court took 

a very demanding approach and scrupulously analyzed every element of the exception, and excluded 

evidence when all were not met.”15 Judge Grimm further summarized the judicial landscape 

pertaining to the admission of electronic business records under Rule 803(6) as follows: 

[S]ome courts will require the proponent of electronic business records or e-mail evidence to 

make an enhanced showing in addition to meeting each element of the business records 

exception. These courts are concerned that the information generated for use in litigation 

may have been altered, changed or manipulated after its initial input, or that the programs 

and procedures used to create and maintain the records are not reliable or accurate. Others 

will be content to view electronic business records in the same light as traditional ‘hard copy’ 

records, and require only a rudimentary foundation. Unless counsel knows what level of 

 

13 See Fed. R. Evid. 803(6). 

14 In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, 87 Fed. R. Evid. Serv. 

492, at *2 (E.D. La. Jan. 11, 2012); Fed. R. Evid. 803(6), Notes of Advisory Committee on Proposed Rules 

(1975) (the manner in which business records are used is deemed to ensure reliability: “by systematic 

checking, by regularity and continuity which produce habits of precision, by actual experience of business in 

relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”). 

15 Lorraine, 241 F.R.D. 534, 572-73 (comparing application of the business record exception to email chains in 

New York v. Microsoft, 2002 WL 649951 (D.D.C. Apr. 12, 2002), Rambus Inc. v. Infineon Tech. AG, 348 F. Supp. 

2d 698 (E.D. Va. 2004), and U.S. v. Safavian, 435 F. Supp. 2d 36 (D.D.C. 2006)). 
5 | Page

scrutiny will be required, it would be prudent to analyze electronic business records that are 

essential to his or her case by the most demanding standard.16 

In the time since Judge Grimm made these observations, I have noticed that courts continue to 

apply different standards when assessing the admissibility of ESI – particularly email and other 

electronic communications – under the “records of a regularly conducted activity” exception to the 

hearsay rule. 

I respectfully suggest that the Committee investigate in the next round of rulemaking whether Rule 

803(6) should be amended to offer greater guidance about its application to ESI. While I do not 

believe that technology-specific guidance is necessary or advisable, I respectfully submit that the 

Committee should reexamine the purpose of the Rule as it applies in a world that is far different 

than when the Federal Rules of Evidence were first adopted. I believe that such examination may 

reveal the need for amendments to the Rule that could lead to a more consistent application of the 

“records of a regularly conducted activity” exception to various forms of ESI, an issue that courts 

will be asked to examine increasingly frequently in our ever-expanding digital world. 

 

16 Lorraine, 241 F.R.D. 534, 574. 
TAB 2

Robert J. Gordon, Weitz & Luxenberg


TAB 3

William A. Rossbach, Rossbach Law PC






TAB 4

Lance R. Pomerantz, Land Title Law
Don’t Throw the Baby Out with the Bath Water!

(Submitted by Lance R. Pomerantz, Esq. as public comment to proposed abrogation of 

FRE 803(16)).

The proposed abrogation of Federal Rule of Evidence 803(16) overlooks 

the continuing vitality of the Ancient Document Exception in land title litigation

and the mischief that might arise from its abrogation.

The Origin of the Exception

The Advisory Committee’s own analysis reached four meaningful 

conclusions about the exception: 1) it “was originally intended to cover 

property-related cases to ease proof of title;” 2) it is usually invoked because 

there is no other evidence on point; 3) “the common law has traditionally provided 

for authenticity of documents based on age” and 4) it has hitherto been 

infrequently used.

The tenor of the Advisory Committee’s report casts these conclusions as 

support for the proposed abrogation -- as if resort to ancient documents in land 

title litigation is a relic of a bygone era. To the contrary, day-to-day land title and 

title insurance litigation regularly addresses boundary disputes, easement claims, 

riparian rights, Native American land claims, “railbanking” or railroad right-of-way 

cases, and mineral rights claims, among many other issues. These cases 

frequently require reliance on documents in excess of 100 years or more, let 

alone twenty.

Many of these cases must resort to documents extrinsic to the public land 

records to illuminate otherwise opaque issues like corporate authority or action, 

death and survivorship, intent, lines of descent or the location of no-longer-extant 

boundary monuments. The proposed abrogation might well stymie a court’s 

ability to reasonably resolve otherwise intractable problems.

Expansion, Not the Rule Itself, is the “Problem”

The Advisory Committee’s Analysis succinctly states the origin of the both 

the exception and the problem: “it was originally intended to cover propertyrelated cases to ease proof of title. It was subsequently expanded, without 

significant consideration, to every kind of case in which an old document 

would be relevant.”

Thus, the underlying cause of concern has actually been unwarranted 

expansion of the types of cases in which the exception is used. The feared influx 

of ESI may magnify the problem, but does not fundamentally define it.

Assuming arguendo that use of the exception in environmental 

contamination, toxic tort, products liability, financial fraud or various species of 

criminal cases (just to name a few) is outside its original scope, that doesn’t 

mean its original intended use is no longer viable or valuable.

An Everyday Tool
2

The Advisory Committee offers no data to support its conclusion that the 

ancient document exception “has hitherto been infrequently used.” The relative 

dearth of reported case law concerning Rule 803(16) in land title cases should 

not be used to gauge the extent of its actual use in such cases. Its use as an 

“everyday” tool far outstrips the occasions on which it is mentioned in trial court 

decisions or becomes an appealable issue.

The Advisory Committee has not suggested any action be taken with 

respect to the Rule providing for the authentication of ancient documents 

pursuant to Federal Rule of Evidence 901(b)(8). Were the proposed abrogation 

implemented, title litigators could be placed in the anomalous position of 

possessing authentic evidence proving an important fact, yet being unable to 

have it admitted due to the absence of the hearsay exception.

In fact, the history of the Ancient Document Exception in land title litigation

is inextricably linked with the authenticity presumption attaching to ancient 

documents, which itself has been recognized in Anglo-American jurisprudence in 

excess of 400 years.

What About Other Exceptions?

The Advisory Committee concluded that the appropriate remedy to the 

problems presented by the Ancient Document Exception is to abrogate the 

exception and leave the field to other hearsay exceptions such as the “residual” 

hearsay exception (Rule 807) and the “business records exception” (Rule 

803(6)).

While the existing regime of exceptions might prove up to the task of 

addressing ancient document hearsay in land title litigation, experience has 

taught that it is impossible to imagine every possible type of evidence. One brief 

example drawn from a real-world case illustrates difficulties other exceptions 

might not adequately address.

Information contained in a personal diary and ship’s log kept by the 

captain of a 19th-century vessel proved to be the critical link in a chain of title that 

would have otherwise been irretrievably broken. Such evidence would not be 

explicitly excepted from the hearsay rule by any current exception other than 

Rule 803(16). This evidence might be admissible under the “residual” exception, 

but only if the presiding judge was convinced it satisfied the four provisions of 

Rule 807(a). These provisions require a more searching inquiry nature of the 

evidence than does the ancient document exception and residual admissibility 

ultimately lies within the discretion of the trial judge. Indeed, abrogation might be 

interpreted by trial courts to mean the hearsay exception now routinely accorded 

“ancient documents” must meet a higher standard of reliability to be admissible.

In strategic planning parlance, the Ancient Document Rule allows for 

admissibility of the “known unknown” -- the important piece of evidence whose

existence can be anticipated, but whose form or circumstance can’t be precisely 

predicted, and would be inadmissible save for 803(16). The preference should 

be to maintain a scheme that gives the broadest possible latitude to admissibility 
3

of title evidence that is prima facie hearsay.

Unintended Consequences

It is also important to consider the potential domino effect a complete abrogation might 

have on similar state evidence rules. For example, in 1974 the National Conference of 

Commissioners on Uniform State Laws dramatically revised the then-existing Uniform 

Rules of Evidence to conform to the ancient document hearsay exception contained in 

the Federal Rules of Evidence. Thirty-eight states presently have a version of the URE 

in effect.

Should the proposed abrogation occur, it could provide precedent for 

abrogation of similar state laws in response to similar concerns. The other side 

of the coin is that if any action ultimately taken on the Federal Rule is adapted to 

the concerns of title litigators, similar state efforts might be guided by that result.

Conclusion

Federal Rule of Evidence Rule 803(16) should not be abrogated. Any 

modification of the Ancient Document Exception should preserve the rule for use 

as originally intended: in property-related cases to ease proof of title.
TAB 5

David Romine, The Romine Law Firm LLC
COMMENT OF DAVID ROMINE

To the Advisory Committee

on the Rules of Evidence

February 2016
2

The ancient documents exception to the rule against hearsay, Fed. R. Evid. 803(16), 

should not be abrogated because the abrogation will needlessly exclude relevant and probative 

evidence. This is particularly true in the kinds of cases in which the facts to be tried occurred 

decades before the present suit is filed, such as in many environmental and denaturalization 

cases. In those cases, ancient documents are often the only evidence of a material fact. Their 

potential admission into evidence under the residual exception, Fed. R. Evid. 807, will not be 

adequate because of judicial hostility to that exception. Abrogation will also result in needless

litigation over tangential issues pertaining to Rule 807, such as the diligence of parties in 

obtaining evidence. Nor will the business records exception1be adequate, because there will 

likely be no “custodian or qualified witness” available. 

There is little danger that ESI will result in a flood of unreliable evidence; there is no 

evidence that this has happened. Courts have dealt with hearsay ESI without serious problems

since before the rules of evidence were enacted. The same will be true of the ancient documents 

exception if it is not abrogated. 

 

1 Fed. R. Evid. 803(6), “Records of a Regularly Conducted Activity.”
3

A. Abrogation of the Ancient Documents Exception Will

Needlessly Lead to Inequitable Results Under CERCLA

CERCLA, the Comprehensive Environmental Response, Compensation, and 

Liability Act, 42 U.S.C. §§ 9601-9675, is the federal statute that addresses hazardous waste sites

most directly. CERCLA was enacted “in response to the serious environmental and health risks 

posed by industrial pollution. ... The Act was designed to promote the ‘timely cleanup of 

hazardous waste sites’ and to ensure that the costs of such cleanup efforts were borne by those 

responsible for the contamination.” Burlington N. & Santa Fe Ry. v. United States, 556 U.S. 

599, 602 (2009) (citations omitted).

CERCLA allows for both government and private enforcement. See, e.g., 42 U.S.C. 

§9607(a) (liability for costs incurred by the United States Government) and 42 U.S.C. § 9613(f) 

(allowing contribution actions by private parties). Because of the length of time it takes to 

identify problems created by hazardous waste sites, CERCLA suits are typically brought many 

years after the events relevant to the suit took place. For example, in the most recent Supreme 

Court case directly interpreting CERCLA, the alleged contamination dated back to 1960.2 This 

is a hallmark of CERCLA cases, because the limitations periods are calculated from clean-up 

events, not from the events that led to the contamination. See 42 U.S.C. § 9613(g)(2) 

(limitations period for cost recovery suits tied to date of environmental response) and 42 U.S.C. 

§ 9613(g)(3) (limitations period for contribution suits tied to date of prior judgment, order or 

settlement relating to site). By the time of trial, there is frequently no one remaining who 

remembers any or some of the material facts. 

 

2 See Burlington Northern, 556 U.S. at 602. Suit was brought in 1992 and tried in 1999. 556 

U.S. at 605.
4

Abrogating the ancient documents exception will exclude relevant and probative 

evidence in CERCLA cases on facts as to which there is no other evidence. As explained below, 

neither the business records nor residual exception is adequate to fill the gap. This will result in 

both claims and defenses failing for lack of evidence, allowing some responsible parties to 

escape liability unfairly, while others unfairly pay too much.

B. Abrogation of the Ancient Documents Exception Will 

Hamper the Prosecution of Denaturalization Cases 

A glance at the reported cases interpreting the ancient documents exception 

reveals that the category of cases in which the exception is second-most common (next to 

environmental cases) – or at least second-most commonly litigated – is the category of 

denaturalization cases.3 As in CERCLA cases, the material facts in many denaturalization cases 

are likely to be decades old, because they come to light only after the government obtains 

evidence that the naturalized citizen fraudulently concealed material facts that occurred in the 

nation of origin. See, e.g., United States v Kalymon, 541 F.3d 624, 633 (6th Cir. 2008) (“[I]f a 

person ‘illegally procured’ his citizenship or otherwise procured it ‘by concealment of a material 

fact or by willful misrepresentation,’ then the person’s citizenship must be revoked,” quoting 8 

U.S.C. § 1451(a)). This problem is exacerbated by the fact that the government has little motive 

or opportunity to investigate in foreign lands the background of persons who have already 

obtained naturalization. See United States v. Kairys, 782 F.2d 1374, 1382, 1384 (7th Cir. 1986) 

 

3 See, e.g., United States v Kalymon, 541 F.3d 624 (6th Cir. 2008); United States v Mandycz, 

447 F.3d 951 (6th Cir.), cert. denied, 549 US 956 (2006); United States v Osyp Firishchak, 468 

F3d 1015 (7th Cir. 2006); United States v. Hajda, 135 F.3d 439 (7th Cir. 1998); United States v 

Stelmokas (3d Cir. 1996), cert. denied, 520 U.S. 1241 (1997); and United States v. Kairys, 782 

F.2d 1374 (7th Cir. 1986).
5

(government was tipped in 1977 about citizen fraudulently naturalized in 1957; denaturalization 

suit brought in 1980 after investigation).

In all the denaturalization cases cited above, the government relied on the ancient 

documents exception to prove its case, at least in part. Abrogation of the exception will deprive 

the government of evidence needed to prove fraudulent concealment of material facts in cases in 

which justice requires that the naturalized person be denaturalized. As explained below, neither 

the business records nor residual exception is adequate to fill the gap. 

C. Abrogation of the Ancient Documents Exception Will

Not Lead to a Flood of Unreliable Evidence

The idea that there is an avalanche of unreliable ESI poised to overwhelm federal 

courts on its twentieth birthday is unrealistic. The admissibility of documents upon turning

twenty years old is not “automatic.” 4 The proponent must prove by a preponderance of the 

evidence that a proffered ancient document is authentic. Fed. R. Evid. 803(16) and 104; United 

States v. Stanchich, 550 F.2d 1294, 1299 (2d Cir. 1977) (preponderance of evidence standard 

applies to admissibility determinations under Rule 104). 

Authentication of an ancient document usually requires proving that the document “(A) is 

in a condition that creates no suspicion about its authenticity; (B) was in a place where, if 

authentic, it would likely be; and (C) is at least 20 years old when offered.” Fed. R. Evid. 901(8) 

(emphasis added). Ancient documents admitted into evidence because a court has found, inter 

alia, no suspicion about its authenticity will not constitute “only unreliable hearsay,” as the 

Committee warns.5 Ancient documents that cannot be authenticated through Rule 901(8) are 

 

4 See Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure 

and the Federal Rules of Evidence, August 2015 (“Preliminary Draft”), p. 18.

5 Preliminary Draft, p. 18.
6

usually not admitted into evidence. See, e.g., Huffman v. City of Conroe, 2009 U.S. Dist. 

LEXIS 10040, *16 (S.D. Tex. Feb. 11, 2009) (proffered ancient document not authenticated and 

therefore not admitted because proponent did not establish “sufficient admissible evidence 

regarding the circumstances under which the document was found”). And ancient documents 

that cannot be authenticated by any means are excluded, because the requirement of 

authentication is written into the exception. Fed. R. Evid. 803(16) (allowing into evidence “A 

statement in a document that is at least 20 years old and whose authenticity is established.” 

Emphasis added).

Courts have been dealing competently with ESI since before Congress enacted the Rules 

of Evidence in 1974. See, e.g., United States v. De Georgia, 420 F.2d 889, 893 n.11 (9th Cir. 

1969) (“[I]t is immaterial that the business record is maintained in a computer rather than in 

company books ...”) and Sears, Roebuck & Co. v. Allstate Driving Sch., Inc., 301 F. Supp. 4, 16 

(E.D.N.Y. 1969) (“The report containing the computer tabulation of the responses was received 

in evidence”). In 1972, a district court issued a pre-trial order requiring parties to address at the 

pre-trial conference the “consideration of possible use of expert evidence and computer, sample, 

and survey evidence.” Marks v. San Francisco Real Estate Bd., 58 F.R.D. 159, 162 (N.D. Cal. 

1972). The Preliminary Draft cites no cases in the 45 years of ESI evidence that represent a 

problem with the ancient documents exception, and there is no reason to think that such a 

problem will suddenly emerge. 

Even if the Committee’s assumption that “there is a strong likelihood that the ancient 

documents exception will be used much more frequently in the coming years”

6

is correct, there is 

no reason to suppose that its use will disable, or even hamper, courts’ ability to determine what is 

 

6 Preliminary Draft, p. 18.
7

reliable. The routine manner in which courts properly apply the rules of evidence to emerging 

forms of ESI is illustrated by the cases cited in an authoritative evidence treatise. See 4 Daniel J. 

Capra, et al., Federal Rules of Evidence Manual § 803.02[7][f] (11th ed. 2015) (discussing cases 

applying the business records exception to ESI, including the internet, emails, Facebook, tweets 

etc.). Federal courts are good at applying existing rules to novel situations.7 Courts are no more 

likely to admit unreliable ESI because it is an ancient document, or vice-versa, than to admit 

unreliable evidence in any other form.

D. The Business Records and Residual 

Exceptions Are Not Adequate Substitutes 

 

1. The Business Records Exception Is Not An 

Adequate Substitute Because There Will Be

No Custodian or Other Qualified Witness

The business records exception to the rule against hearsay, Fed. R. 

Evid. 803(6), is not an adequate substitute for the ancient documents exception because there 

will be no custodian or other qualified witness who can testify regarding one or more of the first 

three requirements for admission. The exception provides, in relevant part:

(6) Records of a regularly conducted activity. A record of an act, event, 

condition, opinion, or diagnosis if:

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

transmitted by--someone with knowledge;

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

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

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

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

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

(12) or with a statute permitting certification; and ...

Fed. R. Evid. 803(6) (emphasis added). Without such a qualified witness, the proffered evidence 

will not be admitted. Coughlin v. Capitol Cement Co., 571 F.2d 290, 307 (5th Cir. 1978).

 

7 One could argue that this is the main job of a common law judge.
8

In none of the denaturalization cases cited above was there a witness who could testify as 

to the origin of the records admitted as ancient documents that would satisfy the requirements of 

Fed. R. Evid. 803(6). Similarly, in Dallas County v. Commercial Union Assurance Co., 286 

F.2d 388 (5th Cir. 1981), there was no one available to testify as to the origin of a 58 year old 

newspaper article.8 Yet in all these cases, the evidence was relevant, probative and reliable, and 

was properly admitted. The business records exception is no substitute. 

2. The Residual Exception Is Not An Adequate Substitute

Because of Judicial Hostility and Because Abrogation 

Will Lead to Litigation Over Tangential Issues 

a. Courts Hold the Residual Exception in Disfavor

Courts hold the residual exception to the hearsay rule, Fed. R. 

Evid. 807, in disfavor,9perhaps because it is sometimes used in a desperate attempt to 

circumvent the rule against hearsay when no other avenue is possible and where the proffered 

evidence is excluded with good reason. “Rule 807 is to be used only rarely, and in exceptional 

circumstances ...”. United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004) (citation and 

quotation omitted) (affirming exclusion of evidence proffered under Rule 807); “Courts must use 

caution when admitting evidence under Rule 803(24),10 for an expansive interpretation of the 

residual exception would threaten to swallow the entirety of the hearsay rule.” United States v. 

Tome, 61 F.3d 1446, 1452 (10th Cir. 1995) (reversing district court’s admission of evidence 

under residual exception). Judicial hostility to the residual exception means that probative, 

 

8 See Fed. R. Evid. 803(16) advisory committee’s note.

9 For example, I found that the judicial members of the Advisory Committee held evidence 

admissible under the residual exception, or its state law equivalent, in one opinion in about 65 

years of combined judicial experience. See United States v. Komasa, 2012 U.S. Dist. LEXIS 

158327 (D. Vt. Nov. 5 2012) (Sessions III, J.)

10 Before the 1997 amendments, the residual exception was numbered Fed. R. Evid. 803(24). No 

change in meaning was intended. See Fed. R. Evid. 807 advisory committee’s note.
9

relevant evidence in ancient documents will be excluded if the ancient documents exception is 

abrogated. The residual exception is no substitute. 

b. Abrogation Will Lead to Increased Litigation Over 

Tangential Issues

Abrogation will lead to increased tangential litigation as the 

question of admissibility of ancient documents is pushed from the ancient documents exception 

to the residual exception, resulting in increased expense for litigants and increased burdens for 

judges. The residual exception requires for admissibility (among other things) that the proffered 

evidence be “more probative on the point for which it is offered than any other evidence that the 

proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a)(3) (emphasis added). 

The ancient documents exception has no such requirement.

Courts read subsection 3 of the residual exception as imposing a duty of diligence on the 

proponent of evidence to try to obtain “other evidence” that would be admissible through some 

more favored rule of evidence. See, e.g., United States v. Turner, 561 Fed. Appx. 312, 321 (5th

Cir. 2014) (residual exception “is intended to be a last resort”; affirming exclusion of testimony 

from earlier trial because proponent “has not pointed to any reasonable efforts to obtain 

[witness’s] live testimony”). Not surprisingly, as in Turner, the diligence of the proponent in 

seeking that other evidence becomes an additional issue to litigate. See, e.g., Barry v. Trs. of the 

Int’l Ass’n ... (Iron Workers) Pension Plan, 467 F. Supp.2d 91, 104 (D.D.C. 2006) (“Although 

he has known since early in this litigation that [witnesses] could provide crucial testimony, 

plaintiff failed to depose them or to seek through discovery other sources for the information 

contained in the ... Memos”; lack of diligence precluded admission of memos under Rule 807); 

and Bortell v. Eli Lilly & Co., 406 F. Supp.2d 1, 10-11 (D.D.C. 2005) (finding proponents of 

affidavits did not make reasonable efforts to depose their own witnesses).
10

Creating new issues to litigate is not productive. The Committee’s proposed abrogation 

of the ancient documents exception is accompanied by a proposal for self-authentication of ESI,

in order to reduce “the expense and inconvenience of producing a witness to authenticate an item 

of electronic evidence.” The Committee should not impose on litigants the expense and 

inconvenience of producing a witness to prove – or disprove – the making of reasonable efforts 

to obtain other evidence. The residual exception is no substitute. 

E. The Ancient Documents Exception is a Venerated Exception 

Under the Common Law, and is No More Susceptible to Abuse 

Than Any Other Rule

According to Wigmore, the ancient documents exception is “three centuries”

old. 7 Wigmore on Evidence § 2137 (rev. ed. 1983). The Committee’s concern that abuse of 

the ancient documents exception is “possible”

11 ignores the fact that abuse of any rule of 

evidence is equally possible. 

This is the ancient rusty weapon that has always been brandished to oppose any 

reform in the rules of evidence, viz., the argument of danger of abuse. This 

would be a good argument against admitting any witnesses at all, for it is 

notorious that some witnesses will lie and that it is difficult to avoid being 

deceived by their lies.

5 Wigmore on Evidence § 1977 (rev. ed. 1983). 

F. Conclusion

The Advisory Committee on Evidence Rules should not, by abrogating the 

ancient documents exception to the rule against hearsay, eliminate a useful and just rule that is 

frequently used in environmental and denaturalization cases, and is no more subject to abuse or

misapplication that any other rule.

David Romine

 

11 Preliminary Draft, p. 19.
TAB 6

Annesley H. DeGaris, DeGaris Law Group
As a practicing attorney, a student of the law and a believer that we are stewards of the best 

system of justice ever created, I appreciate the opportunity afforded by the Judicial Conference's 

Committee on Rules of Practice and Procedure to comment in respect to a proposed amendment 

to the Federal Rules of Evidence. Specifically, I comment in opposition to the abrogation of 

Federal Rule of Evidence 803(16), the hearsay exception for ancient documents.

The proposed abrogation of the hearsay exception for ancient documents is a mistake. As one 

commentator has stated, this proposed rule change is "akin to using a sledgehammer to kill a 

gnat." The need to abrogate the rule is overstated and not well supported by experience. It 

creates a split among the federal system and the majority of states. It places those injured by 

products with long latency periods at a disadvantage. Most importantly, all concerns raised 

concerning the rule can be remedied by amendment to the rule rather than complete abrogation.

 

Several well-reasoned and unassailable amendments are proposed by Professor Peter Nicholas in 

his article "Saving an Old Friend from Extinction: A Proposal to Amend Rather than to Abrogate 

the Ancient Document Hearsay Exception." Anyone considering this issue must read this article 

as well as the opposition letter of the New York Bar. Professor Nicholas proposals include: (1) 

increasing the age for a document to be considered ancient from 20 to 30 years; (2) incorporating 

the reliability criteria of Rule 901(b)(8); (3) specifying that the exception does not allow hearsay 

within hearsay; and (4) requiring authentication that the ancient documents were produced before 

the controversy and that the statements therein were subsequently acted on as true. One or a 

combination of these amendments will adequately address the potential concerns regarding the 

ancient documents exception. 

Justice Sandra Day O'Connor stated that "The founders realized that there has to be some place 

where being right is more important than being popular or powerful, and where fairness trumps 

strength. And in our country, that place is supposed to be the courtroom.” For the ideals 

expressed by Justice O'Connor to have true meaning, the rules used in the courtroom must be 

principled and fair to all.

When called to adopt, modify or reject a rule one must ask does the proposed change fairly 

promote the administration and interest of justice. This proposed change does not. Therefore, I 

urge the Committee to amend rather than abrogate the hearsay exception for ancient 

documents. 
TAB 7

Marc P. Weingarten, Locks Law Firm
1

Judge Sessions and Members of the Advisory Committee on Evidence Rules, 

My name is Marc Weingarten, and I am a senior partner at the Locks Law Firm in Philadelphia. I 

have been practicing law since 1976. After a two-year judicial clerkship for a trial court judge in Chester 

County, Pennsylvania, I joined my present law firm in August of 1978. For my entire legal career, I have 

exclusively represented plaintiffs in civil litigation involving personal injury, including asbestos, mass 

tort, medical devices, prescription drug injuries, and also class actions.

I. Basis of the Rule

The rule in question is a longstanding exception to the hearsay rule. The basis of the rule is 

twofold: necessity and reliability. The rule is necessary because after 20 years, the period of time required 

for the rule to become operative, many of the witnesses who could obviate the usual hearsay impediment 

are either deceased, infirm, or otherwise unavailable due to the passage of time.

Reliability of the evidence is safeguarded by the fact that the rule deals with written documents, 

and not oral statements, which because of their age will have preceded any controversy engendered by 

litigation. The documents were created when there was no need for strategy or subterfuge.

These twin rationale are best explained in the opinion of the United States District Court for the 

District of Wyoming in Compton v. Davis Oil Co., 607 F.Supp. 1221 (D.Wyo 1985). In this case, ancient 

documents were consulted to establish proof of a lawful marriage in a case dealing with a dispute over oil 
2

wells in an action to quiet title. The documents in question were two warranty deeds which had been 

executed by “husband and wife” and also a statement in a death certificate concerning the decedent’s 

marital status. In discussing these documents, the court noted as follows: 

Statements in such ancient documents are admissible due to a rule of necessity as 

well as to the reliability of such evidence in comparison to any other form of available 

evidence. [Citations omitted]. Generally the declarant in such documents is not available 

to testify due to death, and even if not deceased, the declarant is practicably unavailable 

because of the inevitable loss of memory and confusion resulting from the passage of 

time. Generally, there will also be a scarcity of other available evidence probative of the 

matter asserted. Due to the lapse of time the rule reduces the preference for live testimony 

implicit in the hearsay rule. Eyewitness accounts of such events are likely to be less 

reliable than contemporaneous statements recorded in the ancient documents. [Citation 

omitted]. 

In addition, recitations in ancient documents remove the risks of error in 

transmission of information by oral statements. This consideration is especially important 

where the passage of time tolls the memory and removes the statements from the context 

in which they were made. Also, such evidence is less likely to be affected by the forces 

generated by the litigation since they are made in a context where there is less reason to 

fear a lack of candor, distortion, whether conscious or unconscious, or even deliberate 

falsehood affected the statements made [sic] [citations omitted] Compton, supra, 607 F.

Supp. at 1229-1230.

II. Authenticity v. Admissibility

When discussing ancient documents, it is especially important to remember that authenticity and 

hearsay are two separate issues. Although FRE 803(16) can and should be read in conjunction with FRE 

903, the rules are quite different in intent. Rule 903 is a rule of authenticity which provides for selfauthentication of documents under certain circumstances. If 803(16) is abrogated, even if a document is 

authenticated, it will not overcome the fact that it is hearsay and inadmissible. 

Many of these issues are contemplated in the Manual for Complex Litigation, Fourth, '11.445 

(2004) Evidentiary Foundation for Documents:
3

The production of documents, either in the traditional manner or in a document 

depository, will not necessarily provide the foundation for admission of those documents 

into evidence at trial or for use in a motion for summary judgment. ...the court should 

therefore also take into account the need for effective and efficient procedures to 

establish the foundation for admission, which can be accomplished by stipulation, 

requests for admission, interrogatories, or depositions (particularly Rule 31 depositions 

on written questions). [Footnote omitted] While admissions are only binding on the party 

making them, authenticity (as opposed to admissibility) may be established by the 

testimony of any person having personal knowledge that the proffered item is what the 

proponent claims it to be. [Footnote omitted].

III. Examples from Practice

In the course of my practice representing individuals against corporations, I have had numerous 

situations where critical documents were uncovered in out-of-the-way places, such as unheated, unlit

warehouses, garages of retired corporate employees and other unlikely places. Many of those documents 

were ultimately found to be crucial to establishing liability in the litigation, yet there were no witnesses 

available who could testify concerning the creation of the document. Technically, these documents would 

be deemed inadmissible as hearsay. However, the ancient document rule would provide that link to 

admissibility and permit the plaintiffs to proceed with their cause of action. 

An example of documents which might not have been admissible, were it not for this exception to 

the hearsay rule, is found in the early days of the asbestos litigation. The “Sumner Simpson Papers” were 

a large group of documents discovered by lawyers for the plaintiffs. The documents are a series of 

correspondence to and from Sumner Simpson, who was President of Raybestos-Manhattan, an asbestos 

manufacturer, in the 1930s and 1940s. Much of this correspondence consisted of letters to and from 
4

Vandiver Brown, Esquire, Corporate Counsel for Johns-Manville Corporation, another manufacturer of 

asbestos. The documents were critical in proving industry knowledge of the hazards of asbestos and in 

some cases are used for evidence of a conspiracy to cover up that knowledge. Although Johns-Manville 

and Raybestos-Manhattan would be hard pressed to contest the admissibility of those documents, the 

documents have also been utilized in cases against asbestos manufacturers who were not signatories to or 

in receipt of the documents for purposes of proving “state-of-the-art”. In other words, if the state-of-theart is defined as information which is either known or knowable to a manufacturer, the Sumner Simpson 

Papers could be offered to show a jury that if this was knowledge known by Raybestos-Manhattan and 

Johns-Manville, it was also knowable by other companies as well. However, the barriers to admission of 

such evidence against these other companies would be difficult if not impossible, were it not for the 

ancient documents exception. 

If this rule change is effectuated, it can be anticipated that litigation, at least from a plaintiff 

standpoint, would become more costly, time-consuming, and also increase the challenges to obtaining a 

just recovery for injured plaintiffs. The element of additional time comes into play because counsel will 

need to first negotiate with opposing counsel concerning the admissibility of documents, and barring an 

agreement, motion practice will ensue. This means that not only will the cases become more timeconsuming for the lawyers involved, but also for the courts and the entire judicial system. What will 
5

happen is an entirely new series of motions, briefing, oral arguments and court decisions concerning 

documents which were once routinely deemed admissible. This does not work to anyone’s advantage. 

The costs associated with this new motion practice affects all parties. The challenges to recovery in a case 

are also artificially magnified given the fact that if the rule is abrogated, documents which were once 

routinely admitted into evidence would then become the subject of rulings by different judges in different 

jurisdictions, coming to different results. None of these results are beneficial to the litigants, their 

counsel, or the system itself. 

The best way to conclude these comments is to go back to what was perhaps the foundational 

reason for the exception to the rule itself. Memories tend to fade over time. Memories can change due to 

illness or deterioration of the health of a witness but documents will always say what they said when 

originally created. If a witness should die, the memories die with him, but documents do not have a 

lifespan, do not become ill, and do not forget. 

I strongly urge the Committee to leave the rule in its present format. 
TAB 8

Tracy Saxe, Saxe Doernberger & Vita, PC
Thank you for providing me with the time to speak on a matter of great importance for 

policyholders involved in federal court insurance coverage litigation. The recently 

proposed rule change will impact the ability of policyholders to recover on older policies 

paid for many years ago.

As part of the proposed rule change Rule 803(16) will be abrogated. The Ancient 

Documents hearsay exception is incredibly important for insurance policyholders 

seeking coverage. Occurrence-based liability insurance policies offer coverage that 

frequently lasts indefinitely, and activate when a claim is made based on something that 

occurred during that long ago policy term. In many instances very old policies are 

implicated in coverage disputes between insurers and policyholders. This is particularly 

true in environmental coverage actions and product liability claims such as asbestos 

that either have no relevant statutes of limitations or a very long statute of limitations or 

statute of repose.

One of the most significant powers of CERCLA is the EPA’s ability to investigate and 

prosecute pollution events long after they actually occur. There are numerous ongoing 

investigations and administrative proceedings against polluters for activities they 

completed significantly more than twenty years ago. I have been involved in matters 

that relate to occurrences from over 50 years ago.

Almost all companies maintain General Liability insurance policies. General Liability 

policies contain two promises from the insurer. First, policyholders receive a defense at 

the expense of the insurer. Second, policyholders receive indemnification for a covered 

loss. 

Unfortunately, insurance companies, in nearly all jurisdictions, have no obligation to 

retain copies of policies that they have issued. The burden of establishing the existence 

of a policy rests on the policyholders.

Policyholders often must rely on alternative sources such as accounting records, 

company ledger entries, and invoices to establish the contents and even the existence, 

of lost policies. When these documents are more than twenty years old there is often 

no one left who is capable of providing the foundation for the business records 

exception. The contents of those pieces of evidence would only admissible under the 

ancient documents rule. The following case illustrates this point.

In Kleenit, Inc. v. Sentry Ins. Co., 486 F. Supp. 2d 121 (D. Mass. 2007), the policyholder 

sought to use old ledger entries evidencing insurance payments to prove the contents of 

an insurance policy from the mid-1960s. The policyholder, a dry-cleaning chain, sought

coverage for the costs of environmental remediation at sites it polluted in the 

1960s. The company employee primarily responsible for insurance procurement at the 
time in question died in 1985. Ledger entries made by the employee showed payments 

for “prepaid insurance” and referenced a specific policy number.

The ledger sheets did not qualify as business records, but the court allowed them into 

evidence under the 803(16) ancient documents hearsay exception. Because the 

documents satisfied the requirements of the ancient documents authenticity rule 

(901(b)(8)) and were clearly more than 20 years old, the court held that they also met 

the requirements for the hearsay exception; that the statements were “in a document in 

existence twenty years or more the authenticity of which is established.”

Evidentiary rulings do not generate a lot of written decision and insurance coverage 

disputes are prone to settlement. This is a more critical issue than is reflected in the 

limited case law.

When the content of a lost policy cannot be proven, policyholders who paid for coverage

are put in an unreasonably weak position. Utilizing the type of evidence found 

in Kleenit, Inc. and testimony from insurance experts, policyholders can establish the 

existence and contents of their missing policies. This levels the playing field during 

coverage litigation. Without the ancient documents exception to admit this evidence, 

however, policyholders will forfeit coverage they paid for. This is not merely a 

procedural issue for policyholders. Depriving policyholders of the coverage that they 

purchased violates their substantive rights.

The committee suggests using the 807 residual hearsay exception to admit this 

evidence. This is simply not a legitimate avenue to rely on for such crucial evidence. 

There is a significant body of case law holding that this exception should be used very 

infrequently.1

 The Third Circuit, for example, has stated that “Rule 807 is to be used 

 1 See, e.g. Wooldridge v. World Championship Sports Network, Inc., 2009 U.S. Dist. 

LEXIS 85057 at *13 (D. Md. Sept. 17, 2009) (the residual exception should be permitted 

"only in exceptional circumstances"); In determining whether a case involves 

exceptional circumstances sufficient to involve the residual exception, courts have 

generally held that the exception only applies when a statement meets all five 

requirements of Rule 807. United States v. W.B., 452 F.3d 1002, 1006 (8th Cir. 2006) 

("Whether such out-of-court statements are the most probative evidence and are 

necessary to properly develop an issue, however, requires careful scrutiny, because 

hearsay testimony should only be admitted under Rule 807 in exceptional 

circumstances"); United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004) (Rule 807 is 

"to be used only rarely, and in exceptional circumstances" and "appl[ies] only when 

certain exceptional guarantees of trustworthiness exist and when high degrees of 

probativeness and necessity are present"); Earhart v. Countrywide Bank, FSB, 2009 

U.S. Dist. LEXIS 91766 (W.D.N.C. 2009) (finding hearsay statements inadmissible 

under the residual exceptional where the plaintiff failed to show how the statements 

were more probative than other witnesses, lacked the circumstantial guarantees of 

trustworthiness because the statements were made by unidentified declarants, and 
only rarely, and in exceptional circumstances and appl[ies] only when certain 

exceptional guarantees of trustworthiness exist and when high degrees of 

probativeness and necessity are present.” Perhaps most importantly to the particular 

facts of the Kleenit, Inc. case is the Southern District of Alabama’s 2007 holding that, 

“the death of a witness does not alone qualify as an exceptional circumstance to admit 

the witness' statements under the residual exception.”2 

Stated very simply, in a case involving a missing policy from multiple decades ago, the 

only reliable way to establish the contents of a policy is through use of the Ancient 

Documents hearsay exception. Only rarely will a person with knowledge of the policy 

still be around to testify and fulfill the requirements of the business records exception. 

The residual hearsay exception of 807 is unreliable at best and is not sufficient to 

protect the substantive rights of policyholders who are entitled to the coverage they 

purchased. 

Therefore, we recommend that Rule 803(16) not be abrogated. 

Thank you. 

 

 

because plaintiff failed to provide the defendant with sufficient notice of his intent to use 

the hearsay statement). 

2 Phillips v. Irvin, 2007 U.S. Dist. LEXIS 54543 (S. D. Ala. 2007).
TAB 9

Gary Brayton or Gil Purcell, Brayton Purcell LLP
TAB 10

Mary Nold Larimore, Ice Miller
February 5, 2016 WRITER'S DIRECT NUMBER: (317) 236-2407

DIRECT FAX: (317) 592-4688

INTERNET: Larimore@icemiller.com

VIA EMAIL ONLY

Advisory Committee on Evidence Rules 

Administrative Office of the U.S. Courts 

Thurgood Marshall Federal Judiciary Building 

One Columbus Circle, N.E., Suite 7-240 

Washington, DC 20544 

Dear Counsel: 

This letter is being written in support of the preliminary draft of the Federal Rules 

Advisory Committee's proposal to abrogate Rule 803(16). This rule has been on my radar screen 

for over ten (10) years, after observing how it has been used in litigation. I wholeheartedly 

endorse the Committee's proposal and the stated rationale. However, I do wonder whether it is 

accurate to state that the exception is 'rarely invoked.' I think that it is difficult to analyze how

frequently Rule 803(16) is used to admit evidence because so many evidentiary issues arise 

during a trial that may or may not be addressed on appeal or in published opinions. 

The proposition that a document should be considered reliable, probative, admissible 

evidence based solely on the age and authenticity of the document is unsupportable. The 

proponent of each document for admission into evidence should carry the burden of proof that 

the document is both authentic and has probative value, especially when it contains hearsay 

statements, or hearsay within hearsay, and the author is not available for cross examination. 

Whether the document does or does not predate the litigation does not mean that the author of 

the document has provided reliable, credible and probative information that would be admitted 

into evidence if the author was a witness at the trial. The current rule makes the date and 

authenticity of the document outcome determinative of whether the document is admitted into 

evidence. Simply put, there is no relationship to the date of a document and the probative nature, 

or lack thereof, of the information, hearsay, or hearsay within hearsay, contained in the 

document. 

The Daniel J. Capra article that appeared in the Yale Journal of Law and Technology, 

Volume 17, Issue 1 (2015), Electronically Stored Information and the Ancient Documents 

Exception to the Hearsay Rule: Fix it Before People Find Out About It, does an outstanding job 

of supporting the proposition that the rationale for the ancient document exception was never 

very convincing in the first place, and "is simply invalid when applied to prevalent and 

retrievable ESI." The article correctly emphasizes that once authenticity is determined, the rule 

"equates authenticity of the document with admissibility of the hearsay statements in that 

document." (Id. at p. 8). Authenticity and age of a document does not equate to the truthfulness 

of the document, nor does it equate to personal knowledge of the 'facts' or hearsay statements 
Advisory Committee on Evidence Rules 

February 5, 2016 

Page 2 

within the document, or the reliability, truthfulness or probative value of the statements in the 

document. 

Professor Capra correctly identifies this problem when he states: 

Rule 803(16) simply states that a statement is admissible whenever authenticity 'is 

established.' It follows that there is apparently nothing about the authenticity 

requirements of Rule 901(b)(8) in particular that warrant an assumption of the 

reliability of statements in an ancient document; so why not throw out the hearsay 

rule whenever any document is authenticated? The answer is plain: the policy of 

the hearsay rule is to exclude unreliable out-of-court assertions, and that 

policy is not sufficiently furthered – indeed it is ignored – if the only standard 

for admissibility is that the document itself is genuine. (Id. at p. 11 (emphasis 

added)). 

The low standard for admissibility of hearsay evidence based solely on the date and 

authenticity of the document creates the likelihood that the jury will hear 'evidence' that is not 

based on personal knowledge of the author, not reliable, and will be not subject to cross 

examination. The 'evidence' in the document might have been easily rejected if the author was at 

the trial and under oath. Indeed, Professor Capra concludes that "Rule 803(16) is a radical and 

irrational hearsay exception – an error of the common law that was adopted and indeed 

exacerbated by the original Advisory Committee's reduction of the time period necessary to 

trigger it." (Id.) 

I have personally witnessed stacks of documents go into evidence solely on the basis of 

the date. For example, excerpted pages from books with a copyright date twenty years earlier 

were admitted into evidence in a lawsuit, with no witness to attest to the qualifications of the 

author or the reliability of the information in the books and publications. Given the massive 

volume of electronic documents, statements, articles, books, social media, blogs, etc., available 

for any person with a computer to promulgate on any subject, with or without personal 

knowledge, with their versions or assumptions of facts, conspiracy theories, timelines, opinions, 

and conclusions, the notion that simply because it was dated twenty years earlier, it must be 

probative, truthful and reliable 'evidence' is preposterous. 

Because admissibility is based on basically two factors – the date and authenticity of the 

document – the opponent of the document is left with the burden to disprove the date it was 

generated and its authenticity. The Seventh Circuit recently addressed admissibility of 'ancient 

documents' in Mathin v. Kerry, 782 F.3d 804 (7th Cir. 2015), in the context of an immigration 

case. There was a significant dispute as to whether affidavits that were purportedly created in 

1966 were in fact authentic. The Seventh Circuit noted that "The requirement that the document

be free of suspicion relates not to the content of the document, but rather to whether the 

document is what it purports to be, and the issue falls within the trial court's discretion." Id. at 

812 (emphasis in original). While the Seventh Circuit upheld the district court's ruling that there 

was reason to doubt that the affidavits "were what they purported to be," the ruling exemplifies 
Advisory Committee on Evidence Rules 

February 5, 2016 

Page 3 

that the sole battle is on the date and authenticity, and that suspicion of the truth of the content is 

not relevant to admissibility. This doesn't make sense. 

I also agree that the current hearsay exceptions are sufficient to address evidence that is 

twenty years old. Most documents that contain admissible evidence fall within other exceptions. 

Documents that are old can still be admitted, but under those established exceptions. And Rule 

901(8) still provides a method for authentication of documents that are old, without the 

presumption that the contents of the document are automatically admissible. 

I don't think that Professor Capra is overstating the concern under the existing rule. It is 

frightening to think that personal assertions by non-parties in the form of personal emails, blogs, 

Tweets, Facebook posts, text messages, chat room dialog, voicemails, will become admissible 

'evidence' once they are twenty years old. Nor is he speculating when he states that the nearly 

120 million books will automatically have content that is admissible as long as they were written 

twenty years before the trial. Professor Capra states: "That means assertions of fact in those 

books are automatically admissible under the ancient documents exception so long as the books 

are more than twenty years old." (Capra (2015) at 24). I have personally observed the ancient 

documents exception used for this purpose. A witness' testimony would never be considered 

automatically credible, truthful and reliable simply because it was given twenty years earlier. By 

way of example, it is similarly unimaginable that every email, Tweet, post, text, article and book 

on any scientific issue would automatically become admissible 'evidence' when it ages out in 

twenty years. 

The Committee's proposal is sound and well-reasoned. I very much appreciate that the 

Committee is acting in a proactive manner to ensure the integrity of the evidence presented at 

trials, and appreciate the opportunity to weigh in on this important proposal. 

 Respectfully submitted, 

ICE MILLER LLP 

Mary Nold Larimore 

Mary Nold Larimore 

MNL/cjt 

Enclosure 

I\9532512.1 
Yale Journal of Law and Technology

Volume 17

Issue 1 Yale Journal of Law and Technology

Article 1

2015

Electronically Stored Information and the Ancient

Documents Exception to the Hearsay Rule: Fix It

Before People Find Out About It

Daniel J. Capra

Fordham Law School

Follow this and additional works at: http://digitalcommons.law.yale.edu/yjolt

Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and

Technology Law Commons

This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale

Journal of Law and Technology by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact

julian.aiken@yale.edu.

Recommended Citation

Capra, Daniel J. (2015) "Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before

People Find Out About It," Yale Journal of Law and Technology: Vol. 17: Iss. 1, Article 1.

Available at: http://digitalcommons.law.yale.edu/yjolt/vol17/iss1/1
ELECTRONICALLY STORED INFORMATION AND 

THE ANCIENT DOCUMENTS EXCEPTION TO THE 

HEARSAY RULE: FIX IT BEFORE PEOPLE FIND 

OUT ABOUT IT

Daniel J. Capra

17 YALE J.L. & TECH. 1 (2015)

ABSTRACT

The first website on the Internet was posted in 1991. While 

there is not much factual content on the earliest websites, it did 

not take long for factual assertions—easily retrievable today—to 

flood the Internet. Now, over one hundred billion emails are 

sent, and ten million static web pages are added to the Internet

every day. In 2006 alone, the world produced electronic 

information that was equal to three million times the amount of 

information stored in every book ever written.

The earliest innovations in electronic communication are 

now over twenty years old—meaning that the factual assertions 

made by way of these electronic media are potentially 

admissible for their truth at a trial if (and simply because) they 

were made more than twenty years ago. This is due to Federal 

Rule of Evidence 803(16), the so-called “ancient documents” 

exception to the hearsay rule. Under the ancient documents 

exception, documents that would normally be excluded as 

hearsay are admissible if the document is at least twenty years 

old, and if the party offering the document can show that the 

document is “genuine,” or authentic. As electronic 

communications continue to age, all of the factual assertions in 

terabytes of easily retrievable data will be potentially admissible 

for their truth simply because they are old.

This Article argues that the ancient document exception 

needs to be changed because its rationale, while never very 

convincing in the first place, is simply invalid when applied to 

prevalent and retrievable electronically stored information 

(ESI). Part I of the Article discusses the rationales for the 

ancient documents rule and that exception’s relationship with 

the rules of authenticity on which it is based. Part II addresses 

whether the rationales for the ancient document exception, such 

 

 Reed Professor of Law at Fordham Law School and Reporter to the 

Judicial Conference Advisory Committee on Evidence Rules. Thanks to 

Reyhan Watson and Amanda Weingarten for their excellent research 

assistance.

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as they are, can be sensibly applied to ESI. Part III raises and 

answers some arguments against abrogating or restricting the 

ancient documents exception as applied to ESI or even more 

broadly. Part IV considers drafting alternatives for changing 

the ancient documents exception in light of its pending risk of 

use as a loophole for admitting unreliable ESI as evidence.

TABLE OF CONTENTS

Introduction ..................................................................................2

I. The Ancient Documents Rule—Authenticity Rule and 

Hearsay Exception ................................................................6

II. Does the Rationale for the Ancient Documents 

Exception Apply to ESI? .....................................................14

III. Arguments Against an Amendment to Rule 803(16) ........19

A. How Prevalent and Retrievable Is Old ESI?............20

B. Does the Ancient Documents Exception Even 

Apply to ESI?.............................................................25

C. No Existing Problem to Address? .............................30

D. Can the Problem of Unreliable Old ESI Be 

Handled By Use of Rule 403? ...................................31

E. Ancient Hardcopy Documents Might Still Be 

Necessary in Some Litigation ...................................33

IV. Drafting Alternatives ..........................................................34

A. Deletion......................................................................34

B. Limit the Exception to Hardcopy Documents...........37

C. Add a Necessity Requirement ...................................38

V. Conclusion............................................................................41

INTRODUCTION

The first website on the Internet was posted in 1991.1 While 

there is not much factual content on the very early websites, it 

did not take long for factual assertions—easily retrievable 

today—to flood the Internet. To take one example: the first 

easily retrievable web page of the National Enquirer tabloid 

containing assertive content is dated January 20, 1998 and can 

 

1 Daven Hiskey, The First Website Ever Made, TODAY I FOUND OUT, May 24, 

2010, http://www.todayifoundout.com/index.php/2010/05/the-first-websiteever-made (last visited Nov. 4, 2014, 7:06 pm).

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be found on the Internet Archive’s “Wayback Machine.”2 On 

that webpage, the Enquirer asserts that Roseanne Barr and 

her baby were “nearly killed by [her] hubby” and that officers 

had to draw guns to save her life. The Enquirer webpage from 

January 30, 1998 asserts facts about the “Clinton Crisis”—

including an assertion impliedly attributed to Hillary Clinton 

that she “shared Monica with Bill.”3 Similarly outrageous 

assertions can easily be found in electronic text 

communications, which began in 1992,4 and emails, which were 

used as early as 1965.5

All of these innovations in electronic communication are 

now over twenty years old—meaning that the factual 

assertions made by way of these electronic media are 

potentially admissible for their truth at a trial if (and simply 

because) they were made more than twenty years ago. This is 

due to Federal Rule of Evidence 803(16), the so-called “ancient 

documents” exception to the hearsay rule. Under the ancient 

documents exception, a document that would normally be 

excluded as hearsay is admissible if the document is at least 

twenty years old and if the party offering the document can 

show that the document is “genuine,” or authentic.6

It is probably fair to state that the threat of pervasive use of 

the ancient documents exception as applied to electronic 

information is not at crisis level right now because 

electronically stored information (ESI) did not become 

ubiquitous until somewhat less than twenty years ago. But it 

will not be long before all of the factual assertions in terabytes 

of easily retrievable data will be potentially admissible for their 

truth simply because they are old.7 For example, the Wayback 

 

2 National Enquirer, Jan. 20, 1998, WAYBACK MACHINE, http://web.archive

.org/web/19980120010422/http://nationalenquirer.com (last visited Nov. 4, 

2014). Another example of a website that allows users to access archival 

copies of webpages is www.cachedpages.org, which allows users to employ 

one interface to search three different archival services—the Wayback 

Machine, Google Cache, and Coral Cache.

3 Clinton Crisis: Breaking News, NATIONAL ENQUIRER, Jan. 30, 1998, 

available at http://web.archive.org/web/19980130025606/http://www.nat

ionalenquirer.com (last visited Nov. 4, 2014).

4 Kyle Russel, The First Text Message Ever Was Sent 21 Years Ago Today,

BUSINESS INSIDER, Dec. 3, 2013, http://www.businessinsider.com/the-firsttext-message-ever-2013-12.

5 Ian Peter, The History of Email, NET HISTORY, http://www.nethistory

.info/History%20of%20the%20Internet/email.html (last visited Nov. 4, 

2014).

6 FED. R. EVID. 803(16). 

7 For convenience, “old” in this article means more than 20 years old—i.e., 

old enough to trigger the ancient documents exception to the hearsay rule. 

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Machine allows easy retrieval of over 398 billion web pages.8 In 

1998, there were approximately 47 million email users in the 

United States, sending a total of 182.5 billion emails per year.9

The amount of electronically stored information has been 

doubling or tripling every eighteen to twenty-four months.10 In 

2011, the digital universe contained 1800 exabytes of 

information, enough data to fill 57.5 billion 32GB Apple 

iPads.11 In 2006 alone, the world produced electronic 

information that was equal to three million times the amount 

of information stored in every book ever written.12 Over one 

hundred billion emails are sent each day.13 Ten million static 

web pages are added to the Internet every day.14 Most of this 

information will never make it to a piece of paper.

Up until now, the ancient documents rule has been a sleepy 

little exception applied to hardcopy information. In the almost 

forty years of practice under the Federal Rules of Evidence, the 

ancient documents exception has been invoked in less than one 

hundred reported cases. Conversations that I have had with 

(not-to-be-named) judges indicate that many are unaware that 

the exception even exists. It is fair to state that, at this point, 

the ancient document exception is not on the radar for most 

 

8 Don MacLeod, iWitness: Archival Research, 40 LITIG., no. 4, 2014, at 18.

9 THE SEDONA CONFERENCE WORKING GROUP, THE SEDONA PRINCIPLES: BEST 

PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC 

DOCUMENT PRODUCTION 4 (Jonathan M. Redgrave et al. eds., July 2005 

ed.). 

10 Gil Press, A Very Short History of Big Data, FORBES, May 9, 2013, 

http://www.forbes.com/sites/gilpress/2013/05/09/a-very-short-history-ofbig-data (noting that data was estimated to double every eighteen months 

between 2006 and 2010 based on projected growth rates).

11 Rich Miller, ‘Digital Universe’ to Add 1.8 Zettabytes in 2011, DATA CENTER 

KNOWLEDGE, June 28, 2011, http://www.datacenterknowledge.com/arch

ives/2011/06/28/digital-universe-to-add-1-8-zettabytes-in-2011; see JOHN 

GANTZ & DAVID REINSEL, INT'L DATA CORP., STATE OF THE UNIVERSE: AN 

EXECUTIVE SUMMARY (2011), http://www.emc.com/collateral/analyst-rep

orts/idc-extracting-value-from-chaos-ar.pdf (explaining the significance of 

the expansion of the digital universe). The IDC website states the data in 

terms of zettabytes. Id. One zettabyte is equal to one thousand exabytes. 

Zettabyte, SEARCHSTORAGE, http://searchstorage.techtarget.com/definition

/zettabyte. This article uses exabytes for consistency (last visited Mar. 29, 

2015).

12 JOHN F. GANTZ ET AL., INT'L DATA CORP., THE EXPANDING DIGITAL UNIVERSE

1 (2007), http://www.emc.com/collateral/analyst-reports/expanding-digitalidc-white-paper.pdf.

13 THE RADICATI GROUP, INC., EMAIL STATISTICS REPORT, 2013-2017, at 3 

(2013), http://www.radicati.com/wp/wp-content/uploads/2013/04/Email-Sta

tistics-Report-2013-2017-Executive-Summary.pdf.

14 Jason R. Baron & Ralph C. Losey, E-Discovery: Did You Know?, YOUTUBE

(Feb. 11, 2010) https://www.youtube.com/watch?v=bWbJWcsPp1M.

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lawyers or judges. This is surely because the likelihood of 

finding a hardcopy document that is twenty years old and also 

relevant to an existing litigation is quite small. 

But that can change now that much ESI has reached, if not 

surpassed, the twenty-year mark. It has been said that ESI 

“surrounds us like an ever-deepening fog or an overwhelming 

flood.”15 The question is whether anything should be done 

about the ancient documents exception before that exception—

and its applicability to ESI—are discovered by lawyers and 

judges. The potential problem is that ESI might be stored 

without much trouble for twenty years, and the sheer volume of 

it could end up flooding the courts with unreliable hearsay, 

through an exception that would be applied much more broadly 

than the drafters (or the common law) saw coming in the days 

of paper. Examples include self-serving emails from a business, 

tweets and texts about events from people who were not at the 

event, web postings accusing individuals of misconduct, and 

anonymous blog posts. And while it is true that the twentyyear time period will serve as a limit to admissibility in some 

cases, there are many plausible examples of old ESI that will 

be relevant—in criminal cases, many serious crimes are no 

longer limited by statutes of limitations; and in civil cases such 

as antitrust and environmental cases, the long-term nature of 

the wrong may well be shown (or not shown) by old ESI.16

This Article argues that the ancient document exception 

needs to be changed because its rationale, while never very 

convincing in the first place, is simply invalid when applied to 

prevalent and retrievable ESI. Part I of the Article will discuss 

the rationales for the ancient documents rule and that 

exception’s relationship with the rules of authenticity on which 

it is based. Part II will address whether the rationales for the 

ancient document exception, such as they are, can be sensibly 

applied to ESI. Part III will raise and answer some arguments 

 

15 DAVID ROBERT MATTHEWS, ELECTRONICALLY STORED INFORMATION: THE 

COMPLETE GUIDE TO MANAGEMENT, UNDERSTANDING, ACQUISITION,

STORAGE, SEARCH, AND RETRIEVAL 81 (2013). On the prevalence of ESI, see 

Martin Hilbert & Priscila Lopez, The World’s Technological Capacity to 

Store, Communicate, and Compute Information, 332 SCI. 60, 62 (2011) 

(“The total amount of information grew from 2.6 optimally compressed 

exabytes in 1986 to 15.8 in 1993, over 54.5 in 2000, and to 295 optimally 

compressed exabytes in 2007. This is equivalent to less than one 730-MB 

CD-ROM per person in 1986 (539 MB per person), roughly 4 CD-ROM per 

person of 1993, 12 CD-ROM per person in the year 2000, and almost 61 

CD-ROM per person in 2007. Piling up the imagined 404 billion CD-ROM 

from 2007 would create a stack from the earth to the moon and a quarter 

of this distance beyond (with 1.2 mm thickness per CD)).

16 See notes 62-64 infra and accompanying text. 

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against abrogating or restricting the ancient documents 

exception as applied to ESI or even more broadly. Part IV will 

consider drafting alternatives for changing the ancient 

documents exception in light of its pending risk of use as a 

loophole for admitting unreliable ESI as evidence.

I. THE ANCIENT DOCUMENTS RULE—AUTHENTICITY 

RULE AND HEARSAY EXCEPTION

The ancient documents “rule” is actually comprised of two 

rules. One is a rule on authenticity, which provides standards 

for qualifying an old document as genuine. The other is a 

hearsay exception for all statements contained in an authentic 

ancient document. These rules are derived from the common 

law, although the relevant time period has been reduced from 

thirty years in the common law to twenty years in the current 

rules.17

Rule 901(b)(8) provides as an example of evidence satisfying 

the standards of authenticity a document or “data compilation” 

that “(A) is in a condition that creates no suspicion about its 

authenticity; (B) was in a place where, if authentic, it would 

likely be; and (C) is at least twenty years old when offered.”18

The idea behind the rule is plain: if something has been found 

in a likely place after more than twenty years, the chances of it 

being a fake are sufficiently small that its genuineness becomes 

a matter for the jury to consider. As the Advisory Committee 

puts it, the rationale for Rule 901(b)(8) is “the unlikeliness of a 

still viable fraud after the lapse of time.”19 The standard for 

establishing authenticity to the court is low—a showing 

sufficient for a reasonable person to believe that the document 

is what the proponent says it is.20 Under that low standard, if a 

 

17 See FED. R. EVID. 803(16) advisory committee’s note (citing common law 

basis for the hearsay exception that stems from the rule on authenticity); 

FED. R. EVID. 901(b)(8) advisory committee’s note (adopting the “familiar 

ancient document rule of the common law”). The Advisory Committee 

Note to Rule 901(b)(8) attempts to explain the shortening of the time 

period from thirty to twenty years as a “shift of emphasis from the 

probable unavailability of witnesses to the unlikeliness of a still viable 

fraud after the lapse of time” and concedes that any time period “is bound 

to be arbitrary.” Id.

18 FED. R. EVID. 901(b)(8). 

19 FED. R. EVID. 901(b)(8) advisory committee’s note.

20 See, e.g., United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994) (“the 

burden of proof for authentication is slight”); United States v. Holmquist, 

36 F.3d 154, 168 (1st Cir. 1994) (“the standard for authentication, and 

hence for admissibility, is one of reasonable likelihood”); United States v. 

Coohey, 11 F.3d 97, 99 (8th Cir. 1993) (“the proponent need only 

demonstrate a rational basis for its claim that the evidence is what the 

proponent asserts it to be”).

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document looks old and not suspicious, and is found where it 

ought to be, it makes sense to leave the question of authenticity 

to the jury.21

But as the Advisory Committee noted, finding a document 

to be authentic is different from finding the assertions in that 

document to be reliable. Authenticity is a question of whether 

the item offered is what the proponent says it is—for example, 

that an email purportedly written by a person was actually 

written by that person. Reliability is a question of whether the 

assertions in a genuine item are in fact true—and that is the 

concern of the hearsay rule.22 As the Committee put it, “since 

most of these items are significant inferentially only insofar as 

they are assertive, their admission in evidence must be as a 

hearsay exception.”23 To address the hearsay issue, the drafters 

included a hearsay exception, Rule 803(16), which provides 

that “[a] statement in a document that is at least 20 years old 

and whose authenticity has been established” is admissible 

despite the fact that it is hearsay.24

Professors Christopher Mueller and Laird Kirkpatrick set 

forth the most complete articulation of the rationale for the 

ancient documents hearsay exception:

Need is the main justification. The lapse 

of 20 years since the acts, events or conditions 

described almost guarantees a shortage of 

evidence. Witnesses will have died or 

disappeared. Written statements that might fit 

other exceptions (business records, past 

 

21 Rule 901(b)(8) is not, however, the only avenue for authenticating an 

ancient document and thus triggering the ancient documents exception to 

the hearsay rule. Rule 803(16) says that the statements in a document 

that is at least twenty years old and whose “authenticity is established” 

are admissible for their truth. “Authenticity is established” means 

established in any way. FED. R. EVID. 803(16). Thus, as will be discussed 

below, the tried and true methods for authenticating ESI in general are 

fully applicable to authenticating twenty-year-old ESI.

22 See, e.g., STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL J. CAPRA, 4

FEDERAL RULES OF EVIDENCE MANUAL § 801.13 (10th ed. 2012) (“The 

hearsay rule is designed to exclude a certain type of unreliable evidence. 

Hearsay is presumptively unreliable because when an out-of-court 

statement is offered for its truth, it is only probative if the person who 

made the statement—the declarant—was telling the truth. But the 

truthfulness of an out-of-court declarant cannot be assessed by the 

ordinary methods with which we determine the truth of testimonial 

evidence—oath, cross-examination, and the factfinder’s scrutiny of the 

witness’s demeanor.”). 

23 FED. R. EVID. 803(16) advisory committee’s note.

24 FED. R. EVID. 803(16).

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recollection) are typically thrown out or lost or 

destroyed25 . . . . 

Naturally, statements in ancient 

documents are affected by risks of misperception, 

faulty memory, ambiguity, and lack of candor 

(they are not intrinsically more reliable than oral 

statements), and a written statement unreliable 

when made is unreliable forever. Ancient 

documents do, however, bring fewer risks of 

misreporting (because the document is in 

writing),26 and they bring at least some 

assurance against negative influences: When 

authenticated, an ancient document leaves little 

doubt that the statement was made; there is 

little risk of errors in transmission; because of its 

age, the document is not likely to have suffered 

from the forces generating the suit, so there is 

less reason to fear distortion or lack of candor.27

If a document satisfies the authenticity requirements of 

Rule 901(b)(8) or satisfies any other ground of authentication 

provided in Rules 901 or 902, and is over twenty years old,28

then every statement in that document can be admitted for its 

truth. That is so because Rule 803(16) simply equates 

authenticity of the document with admissibility of the hearsay 

statements in that document. The rule does not purport 

 

25 Whether the assertion of Professors Mueller and Kirkpatrick is applicable 

when the old material is ESI will be discussed in Part III, infra. 

26 Mueller and Kirkpatrick’s reliance on a writing as a guarantee of 

reliability is in fact misplaced. The problem that the hearsay rule 

addresses is that there is an out-of-court declarant who may be unreliable 

and cannot be cross-examined. The reporting of the statement is not a 

hearsay problem because the person reporting is on the stand subject to 

cross-examination. Therefore it does not matter, for purposes of the 

hearsay rule, whether the statement is oral or written. That is to say, 

whether the statement was made is not a hearsay problem; the hearsay 

problem is about whether the statement is true. 

27 CHRISTOPHER MUELLER & LAIRD KIRKPATRICK, 4 FEDERAL EVIDENCE § 

8:100 (4th ed. 2013); see also FED. R. EVID. 803(16) advisory committee’s 

note (arguing that “age affords assurance that the writing antedates the 

present controversy”).

28 As noted above, the ancient documents hearsay exception does not require 

the document to be authenticated under Rule 901(b)(8); it can be 

authenticated in any way. So, for example, a twenty-year-old domestic 

public document under seal is self-authenticating under Rule 902(1). 

Thus, the statements in the document would escape the hearsay bar 

without the need of the proponent to show authenticity under Rule 

901(b)(8).

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specifically to regulate the reliability of the contents of an 

ancient document through some circumstantial guarantee, 

even though other hearsay exceptions in Rule 803 are grounded 

in circumstantial guarantees of reliability.29 While the 

Advisory Committee obliquely states, “age affords assurance 

that the writing antedates the present controversy,” there is no 

admissibility requirement in the rule that, in fact, the 

statements must predate the controversy.30 As the court put it 

in Threadgill v. Armstrong World Industries, Inc., “Once a 

document qualifies as an ancient document, it is automatically 

excepted from the hearsay rule under Fed. R. Evid. 803(16).”31

Consequently, the Threadgill court reversed a trial court’s 

ruling that excluded an ancient document because the content 

was untrustworthy.32

Rule 803(16) is the only rule of evidence that equates 

authenticity with admissibility of hearsay.33 It is a curious 

assumption that, just because an old document is authentic, 

 

29 See, e.g., FED. R. EVID. 803(4) (outlining a hearsay exception for 

statements made for purposes of medical treatment based on 

circumstantial guarantees of reliability inherent in obtaining medical 

treatment, and on the fact that the statement must be pertinent to the 

doctor’s treatment or diagnosis); FED. R. EVID. 803(6) (outlining a hearsay 

exception for statements made in the course of regularly conducted 

activity based on circumstantial guarantees of reliability inherent in 

regular recording of regularly conducted activity). 

30 FED. R. EVID. 803(16) advisory committee’s note.

31 928 F.2d 1366, 1375 (3d Cir. 1991). 

32 A qualification to the rule of broad admissibility in text does arise if the 

ancient document itself refers to a hearsay statement—e.g., an old diary 

entry stating that “The defendant just sent me a letter in which he 

confessed to robbing my store.” The hearsay exception would cover the fact 

that the diarist received a letter, but whether the defendant actually 

confessed to the robbery would have to be handled by another exception—

in this case that would be a party-opponent statement, FED. R. EVID.

801(d)(2). In other words, the ancient documents exception does not 

abrogate the rule on multiple hearsay imposed by Rule 805—at least in 

the view of right-thinking courts. See, e.g., United States v. Hajda, 135 

F.3d 439, 443 (7th Cir. 1998) (noting that the ancient documents exception 

“applies only to the document itself,” and that “[i]f the document contains 

more than one level of hearsay, an appropriate exception must be found 

for each level”). For more on the ancient documents exception and 

multiple hearsay, see Gregg Kettles, Ancient Documents and the Rule 

Against Multiple Hearsay, 39 SANTA CLARA L. REV. 719 (1999) (arguing 

that the ancient documents exception is subject to the rule on multiple 

hearsay, but noting the split of authority).

33 See Fagiola v. Nat’l Gypsum Co., 906 F.2d 53, 58 (2d Cir. 1990) (“Because 

of the hearsay rule, authentication as a genuine ERCO document would 

not generally suffice to admit the contents of that document for its truth. 

One exception is when documents are authenticated as ancient documents 

under Rule 901(b)(8), in which case they automatically fall within the 

ancient document exception to the hearsay rule, Rule 803(16).”).

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the statements in it are automatically reliable enough to escape 

the rule excluding hearsay. Despite the Advisory Committee’s 

assertion that the “danger of mistake is minimized by 

authentication requirements,”34 none of the guarantees for 

authenticity set forth in Rule 901(b)(8) or any other 

authenticity rule do anything to assure that the statements in 

the authentic document are reliable. As the Seventh Circuit 

aptly put it in United States v. Kairys, the authentication rule’s 

requirement that a proffered document be free of suspicion 

“goes not to the content of the document, but rather to whether 

the document is what it purports to be.”35 For example, a 

twenty-year-old National Enquirer, kept in an archivist’s 

study, will be found authentic—but should that mean that 

every single statement in the Enquirer about Michael Jackson, 

or alien invasions, should be admissible for its truth?

Indeed, that would follow from the Advisory Committee’s 

assertion that any authentic document should be admissible for 

the truth of its assertions. Yet the Advisory Committee gives no 

indication of why the danger of unreliable assertions is 

minimized by authentication requirements for ancient 

documents but not for any other documents or statements. The 

Advisory Committee’s assertion is especially weak given the 

fact that a statement in an ancient document is admissible for 

its truth even if the document is authenticated in some way 

other than under Rule 901(b)(8)—Rule 803(16) simply states 

that a statement is admissible whenever authenticity “is 

established.”36 It follows that there is apparently nothing about 

the authenticity requirements of Rule 901(b)(8) in particular 

that warrant an assumption of the reliability of statements in 

an ancient document; so why not throw out the hearsay rule 

whenever any document is authenticated? The answer is plain: 

the policy of the hearsay rule is to exclude unreliable out-ofcourt assertions,37 and that policy is not sufficiently 

furthered—indeed it is ignored—if the only standard for 

admissibility is that the document itself is genuine.

A further anomaly of the ancient documents hearsay 

exception is inherent in its bright-line nature. For example, a 

copy of the National Enquirer that is 19 years and 364 days old 

could be authenticated,38 but none of the assertions in that 

 

34 FED. R. EVID. 803(16) advisory committee’s note.

35 782 F.2d 1374, 1379 (7th Cir. 1986).

36 FED. R. EVID. 803(16).

37 See, e.g., Laurence H. Tribe, Triangulating Hearsay, 87 HARV. L. REV. 957, 

958 (1974) (noting that hearsay is subject to “testimonial infirmities” that 

can render it unreliable). 

38 See FED. R. EVID. 902(6) (material purporting to be a newspaper or 

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Enquirer would be automatically admissible for their truth. 

The equation of authenticity and hearsay admissibility occurs 

the second that the periodical becomes twenty-years-old. 

Perhaps it is true, as the Advisory Committee concedes, that 

“[a]ny time period selected is bound to be arbitrary.”39 But that 

assertion only begs a number of questions. First, why is an 

arbitrary time period the correct solution to either authenticity 

or reliability? Given that the basis for an ancient documents 

rule lies somewhere among the principles of necessity and lack 

of motive to fabricate a document for litigation so far down the 

road, why not articulate those policies as a textual standard of 

admissibility? An arbitrary time period is an inexact surrogate 

for the policies that appear to underline the ancient document 

rules. 

Second, even if a statutory time period is used, why use it 

in such a binary fashion? Why not, for example, apply more or 

less stringent standards of admissibility whenever a document 

falls on one side or the other of the line? For example, Federal 

Rule of Evidence 609(b) contains a ten-year time period 

applicable to impeaching a witness with a prior conviction.40

But while the time period is arbitrary, the Rule does not 

arbitrarily state that a conviction is admissible if falling on one 

side of the timeline and inadmissible if it falls on the other. In 

contrast to Rule 803(16), Rule 609(b) provides for a less 

generous rule of admissibility if the conviction falls on the “old” 

side of the line. An analogous solution for Rule 803(16) that 

would avoid the irrationality of a statement inadmissible on 

one day but admissible for its truth on another would be to 

provide a different, somewhat more generous, rule of 

admissibility for the “old” statement. But Rule 803(16) makes 

no such effort. 

In the end, Rule 803(16) is a radical and irrational hearsay 

exception—an error of the common law that was adopted and 

indeed exacerbated by the original Advisory Committee’s 

reduction of the time period necessary to trigger it. The original 

Advisory Committee did not provide a convincing explanation 

for equating authenticity of a document and the reliability of 

its contents—no explanation can be found in the legislative 

 

periodical is self-authenticating).

39 FED. R. EVID. 901(b)(8) advisory committee’s note. 

40 Rule 609(b) provides that “if more than 10 years have passed since the 

witness’s conviction or release from confinement” evidence of the 

conviction may be admitted to impeach the witness only if “its probative 

value, supported by specific facts and circumstances, substantially 

outweighs its prejudicial effect” and proper notice is provided. FED. R.

EVID. 609(b).

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history other than the Advisory Committee Note’s assertion 

that statements predating litigation are more likely to be 

reliable. 

But if the rule is so misguided, why has the modern 

Advisory Committee not done something about it? 

The answer, I believe, is that Rule 803(16) has flown under 

the radar because it is so rarely invoked.41 A Westlaw search 

indicates that ancient documents have been admitted in fewer 

than one hundred reported cases since the Federal Rules of 

Evidence were enacted.42 Of course, it is not possible to 

determine how often the exception has been used in unreported 

cases, but it is fair to state that judges do not invoke the 

exception very often. 

The Advisory Committee on Evidence Rules has always 

taken a conservative approach to proposing amendments to the 

Evidence Rules. Amendments are costly because experienced 

litigators and judges need to know the rules that exist, often 

without having the luxury of referring to a book. Any change to 

those rules imposes dislocation costs on litigators, judges, and 

the legal system as a whole—so the change had better be worth 

it. For example, in 2003, the Justice Department sought to 

amend Rule 410 to provide that statements made by a 

prosecutor during plea negotiations could not be admissible 

against the government if the defendant ended up going to 

trial;

43 as written, the Rule protects statements made by the 

defendant in plea negotiations, but not those made by the 

government.44 The rationale for the proposed change was that 

Rule 410 is intended to encourage uninhibited plea 

negotiations, and that this goal would be maximized by 

protecting the statements of both sides. While the Department 

of Justice seemed to propose a worthy and sensible change, the 

Advisory Committee refused to pursue it, as indicated in the 

minutes of the Spring 2004 meeting:

[A] number of questions and concerns were 

raised about the merits of the draft amendment 

 

41 The fact that the ancient documents exception was a backwater exception 

might well explain the original Advisory Committee’s relative lack of 

concern about it. But the problem addressed by this Article is that the 

prevalence of ESI has destroyed the original “backwater” premise.

42 In contrast, for example, state of mind statements have been admitted 

under Rule 803(3) in around 900 published cases. Searches for “803(16)” 

and “803(3)” conducted on Oct. 1, 2014.

43 Minutes of the Meeting, ADVISORY COMM. ON EVIDENCE RULES 10-13, Nov. 

13, 2003, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minut

es/1103EVMin.pdf.

44 See FED. R. EVID. 410. 

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to Rule 410. The most important objection was 

that the amendment did not appear necessary, 

because [every reported case has] held that a 

statement or offer made by a prosecutor in a plea 

negotiation [is inadmissible] against the 

government as an admission of the weakness of 

the government’s case . . . . [n]otwithstanding the 

questionable reasoning [sometimes used to reach 

this result] . . . .

. . . . 

Given . . . the fact that the courts are 

reaching fair and uniform results under the 

current rules . . . members of the Committee 

questioned whether the benefits of an 

amendment to Rule 410 would outweigh the 

costs. The Committee ultimately concluded that 

Rule 410 was not “broken,” and therefore that 

the costs of a “fix” are not justified.45

If the goal is to propose amendments only when necessary 

to remedy a real problem, it is understandable that the 

Advisory Committee has not yet chosen to amend a rule that 

many litigators and judges have never used or even thought 

about. But now that terabytes and zettabytes46 of information 

are reaching or have already reached a twentieth birthday, the 

committee should rethink the ancient documents exception. In 

other words, data overload is already, or soon will be, a real 

problem worth fixing.

This new concern about the possible overuse of the ancient 

documents hearsay exception has not gone unnoticed by the 

Advisory Committee. The Committee is currently considering 

whether the use of ESI warrants amending Rule 803(16) to 

avoid abuse of that exception.47

 

45 Minutes of the Meeting, ADVISORY COMM. ON EVIDENCE RULES 11-12, Apr. 

29-30, 2004, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Min

utes/EV04-2004.pdf.

46 See Sridhar Pappu, To Handle the Big Data Deluge, HP Plots a Giant 

Leap Forward, HP MATTER, June 2014, https://ssl.www8.hp.com/hpmatter

/issue-no-1-june-2014/handle-big-data-deluge-hp-plots-giant-leap-forward

(explaining how much data exists in the world).

47 See Agenda for Committee Meeting, ADVISORY COMM. ON EVIDENCE RULES

5, Apr. 4, 2014, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules

/AgendaBooks/Evidence/EV2014-04.pdf (displaying “Possible Amendment 

to Rule 803(16)” as an agenda item).

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II. DOES THE RATIONALE FOR THE ANCIENT DOCUMENTS 

EXCEPTION APPLY TO ESI?

It can certainly be argued that if the rationale of the 

ancient documents exception is enough to support admissibility 

of hardcopy, then it is enough to support the admissibility of 

ESI. That argument begins with the observation that the 

original Advisory Committee was aware of the existence of 

electronic information and sought in some way to accommodate 

it within the ancient documents rule. Rule 901(b)(8)—which as 

stated above is an authenticity-based rule that provides a 

gateway for admissibility under the hearsay exception—

specifically covers an old “data compilation” that is in

suspicion-free condition and found in a suspicion-free place. 

However right or wrong the Advisory Committee was about 

ancient documents’ admissibility, the Committee decided to 

treat electronic information the same as hardcopy for purposes 

of authenticity.48 The fact that the Advisory Committee foresaw 

and accommodated ESI in the authenticity rule arguably 

counsels caution in trying to rethink the ancient document 

rule. 

But even though consideration of a question by the original 

Advisory Committee is surely relevant to the merits of an 

amendment, it is not as clear that the original Advisory 

Committee thought much about the risk to the hearsay rule 

that might be found in the explosion of ESI. It is notable that 

Rule 901(b)(8) specifically mentions data compilations and Rule 

803(16) does not. Given the vast rate of data growth, it is likely 

that the Advisory Committee was not explicitly thinking of the 

possibility that terabytes upon terabytes of information would 

become admissible for their truth simply because that 

information was stored in a server for twenty years.49 Indeed, 

 

48 See FED. R. EVID. 901(b)(8) advisory committee’s note (“The familiar 

ancient document rule of the common law is extended to include data 

stored electronically or by other similar means . . . . This expansion is 

necessary in view of the widespread use of methods of storing data in 

forms other than conventional written records.”).

49 It should be noted that any argument based on the omission of a reference 

to ESI in Rule 803(16) is weakened by the fact that after the restyling of 

the Evidence Rules in 2011, Rule 803(16) can now in fact be plausibly read 

to cover ESI. This is because the new Rule 101(b)(6) provides that “a 

reference to any kind of written material . . . includes electronically stored 

information.” Thus the reference to a “document” in Rule 803(16) would 

appear to have been, so to speak, “electrified” by the restyling. The 

counter to that argument is that, as emphasized in the Committee Notes 

to the restyling, no change in the substance of any rule was made or 

intended. See FED. R. EVID. 101 advisory committee’s note to 2011 

Amendments; FED. R. EVID. 803 advisory committee’s note to 2011 

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the proliferation of ESI shows that taking a hands-off approach 

to a rule of evidence simply because the Advisory Committee 

thought the rule was a good idea several decades ago ignores 

relevant changes that take place over time.50

The question, then, is whether the explosion of electronic 

information has separated ESI from the original justifications 

for the hearsay exception for ancient documents. As stated 

above, the primary justification for the ancient documents 

exception is necessity, which comes down to the premise that it 

is likely that all reliable evidence (such as business records) 

has been destroyed within the twenty-year time period, and 

thus we have to make do with more dubious evidence. This 

necessity assumption is substantially undermined by the 

growth of ESI. Because ESI is prevalent51 and easily preserved, 

whatever reliable evidence existed at the time of a twenty-yearold event probably still exists. Indeed, the probability that most 

or all ESI records (emails, text messages, receipts, scanned 

documents, etc.) will be available is certainly higher than the 

probability that hardcopy documents or eyewitnesses will still 

be available and useful several decades after a contested 

event.52 There is no reason to admit unreliable ESI on necessity 

grounds if it is quite likely that there will be reliable ESI that 

is admissible under other hearsay exceptions.53 Thus the 

 

Amendments.

50 The Supreme Court often finds the Advisory Committee’s opinions 

persuasive. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (establishing a 

psychotherapist-patient privilege under Federal common law, a decision 

“reinforced” by the fact that such a privilege was included in the list of 

privileges that the original Advisory Committee sent to Congress). But 

that does not mean those opinions are always controlling. See, e.g., Green 

v. Bock Laundry Mach. Co., 490 U.S. 504, 510 (1989) (noting that original 

Rule 609(a)(1), as written, led to an anomalous result in civil cases and 

therefore “can’t mean what it says.”). And it especially does not mean that 

the Advisory Committee has always been able to predict the changes in 

society and technology that might justify a change to the Evidence Rules. 

51 See Ronald J. Hedges, Daniel Riesel, Donald W. Stever & Kenneth J. 

Withers, Taking Shape: E-Discovery Practices Under the Federal Rules, 

SN085 ALI-ABA 289, 292 (2008) (“According to a University of California 

study, 93 percent of all information generated during 1999 was generated 

in digital form, on computers. Only 7 percent of information originated in 

other media, such as paper.”); see also David K. Isom, Electronic Discovery 

Primer for Judges, 2005 FED. CTS. L. REV. 1 (showing that, of an estimated 

5.6 million terabytes of data stored in 2002, 5.18 million terabytes were 

stored electronically and an additional 420,000 were stored on film).

52 Challenges to the premise that old ESI is actually preserved/accessible 

will be discussed in the next Part. 

53 See, e.g., Paramount Pictures Corp. v. International Media Films Inc., No. 

CV 11-09112 SJO (AJWx), 2013 WL 3215189 (C.D. Cal. June 12, 2013) 

(finding that records regarding a film, more than twenty years old, were 

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“necessity” of proving claims based on older information of 

whatever provenance has been and will be answered by the 

existence of bytes upon bytes of reliable electronic 

information—information that was not or could not have been 

preserved further in the past. If the ancient documents 

exception remains as is, the legal system will face a situation in 

which parties can freely admit unreliable ESI just because it is 

old notwithstanding the existence of prevalent, reliable 

alternative evidence.

But there is another (lesser) justification for the exception 

that needs to be addressed—that an old statement has some 

indicium of reliability due to the fact that it was made before 

any litigation motive could have arisen. That justification is not 

completely without merit, and it would seem to apply to ESI as 

much as it applies to hardcopy. But there are a number of 

counterarguments. 

First, the fact that a statement was made before a specific 

conflict arose does not mean it did not have some litigation 

motive. For example, take a case in which a plaintiff is suing a 

major corporation for employment discrimination. The 

defendant wants to admit twenty-year-old text messages from 

the plaintiff’s previous employer, casting aspersions on the 

plaintiff’s work. It is certainly possible that such messages, if 

true, could be probative to prove the employer’s lack of intent 

to discriminate, or for some other non-propensity purpose.54

But as to hearsay—whether the activity even occurred—the 

statements may well have been made under the previous 

employer’s own litigation motive at the time. 

Another common example of old evidence made under a 

non-specific litigation motive is that of documents produced in 

an environmental cleanup action under the Comprehensive 

Environmental Response, Compensation, and Liability Act of 

 

admissible as business records). At the very least, the threat of rampant 

use of old and unreliable ESI should lead to an adjustment of the Rule to 

include something like the necessity language of Fed. R. Evid. 807—

requiring that the proffered evidence is more probative than any other 

evidence reasonably available. One of the drafting alternatives infra

considers this possibility.

54 See, e.g., Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. 2009) (finding 

admissible evidence of the employer’s activity toward other employees to 

establish modus operandi); Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 

2008) (holding that evidence of plaintiff’s long-running participation in a 

race discrimination class action should have been admitted as probative of 

employer’s retaliatory intent); Jackson v. Quanex Corp., 131 F.3d 647 (6th 

Cir. 1999) (finding admissible evidence of racial graffiti at employer’s 

plant and racially offensive conduct toward African-American workers to 

prove discriminatory intent even if not directed toward the plaintiff).

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1980 (CERCLA), which imposes liability for cleanup costs on 

any company that deposits hazardous materials at a place 

covered by the statute.55 The statute of limitations for a cost 

recovery action under CERCLA runs from the day the plaintiff 

performed certain acts to clean up the contamination, which 

could be decades after the materials were deposited.56 It is 

more than plausible to believe that a party would generate selfserving documents in anticipation of the possibility of some 

CERCLA action far in the future. Another obvious example is 

mass tort litigation stemming from hazardous substances. The 

time differential here arises from a combination of latency 

periods for the risks and the lengthiness of the proceedings. 

But, as is seen in tobacco litigation, the litigation motive can 

exist at the time a document is prepared even if the litigation 

potential is far in the future.57

Given the sheer volume of old ESI, it is apparent that some 

old ESI will have been made with a litigation motive of some 

kind—and yet this ESI would be automatically admissible 

under an unamended Rule 803(16) simply because it is old. It is 

important to note that the existing Rule does not require that 

the document actually have been prepared before a controversy 

arose. The Advisory Committee assumed there would be no 

litigation motive affecting old documents, but did not require a

finding of lack of motive in the text of the rule.58 Given docket 

 

55 Comprehensive Environmental Response, Compensation, and Liability 

Act of 1980 (CERCLA) § 107, 42 U.S.C. § 9607 (West 2014). 

56 CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2) (establishing statutory period 

running from “initiation of physical on-site construction of the remedial 

action”). Indeed, a good percentage of reported cases applying the ancient 

documents exception to hardcopy are CERCLA actions. See, e.g., United 

States v. Atlas Lederer Co., 282 F. Supp. 2d 687 (S.D. Ohio 2001) (finding 

hardcopy customer documentation regarding a battery disposal site 

inadmissible as business records but admissible as ancient documents); 

Reichhold Chem. Inc. v. Textron, Inc., 888 F. Supp. 1116 (N.D. Fla. 1995) 

(offering ancient documents in opposition to an affirmative defense to 

CERCLA liability).

57 See, e.g., Rule 803(16): Ancient Documents, 15 FEDERAL RULES OF 

EVIDENCE NEWS 90-177, 90-189 (1990) (“The phenomenon of docket delays 

as well as the frequent litigation of liability arising from health 

detriments that may take decades to come about may be giving new life to 

the neglected ‘ancient documents' hearsay exception.”).

58 See, e.g., Langbord v. U.S. Dept. of Treasury, Civil Action No. 06-5315, 

2011 WL 2623315, at *3 (E.D.Pa. July 5, 2011) (“Requiring courts to 

ignore the ancient document rule's three requirements and make 

determinations based on whether a document was prepared with similar 

litigation in mind would require courts to assess a document's 

trustworthiness or bias, a task inappropriate when resolving threshold 

authenticity questions.”); Columbia First Bank v. United States, 58 Fed. 

Cl. 333 (Fed. Cl. 2003) (finding no requirement in the rule that the 

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delays and the lengthiness of disputes endemic to certain kinds 

of large cases, it would not be surprising that ESI could have 

been prepared more than twenty years earlier for the specific 

dispute before the court.59

Second, even if an absence of litigation motive might exist 

for a particular ancient document, that would be the only 

reliability-based factor supporting admissibility for hearsay 

admitted under Rule 803(16). No other hearsay exception relies 

solely on the absence of litigation motive in establishing the 

reliability required for admission of hearsay. Hearsay 

statements are excluded every day even though they are made 

without a litigation motive. Take as an example a statement of 

an unaffiliated bystander to an accident, made the day after 

the accident, indicating that the defendant-driver was at fault. 

That statement is inadmissible hearsay even if the declarant is 

unavailable at trial. There is no reliability-based justification 

for admitting the same statement simply because the event is 

twenty years old. The basic position of the hearsay rule and its 

other exceptions—that absence of litigation motive is relevant 

but not dispositive for determining admissibility of hearsay—

makes eminent sense because many out-of-court statements 

are demonstrably unreliable, even if made without litigation 

motive. Personal animosities, rampant misperceptions, and 

just plain willingness to lie can impair the reliability of an outof-court statement even if the declarant made it with no 

upcoming litigation. 

Third, the thin reed of (possible) reliability based on 

absence of litigation motive might once have been tolerable 

because the ancient documents exception was rarely used. But 

again, that is likely to change with the advent of ESI. It is 

surely the case that lawyers will seek to use the exception more 

frequently to admit stored ESI for its truth.60 Establishing 

admissibility under 803(16) is likely to be easier than, for 

example, using the business records exception to the hearsay 

rule.61 That exception, Rule 803(6), requires foundation 

testimony or an affidavit from a knowledgeable witness, as well 

 

document must actually antedate the controversy).

59 See Osprey Ship Management, Inc. v. Jackson County Port Authority, 

Civil No. 1:05CV390-HSO-RHW, 2008 WL 282267 (SD. Miss. Jan. 29, 

2008) (finding admissible as an ancient document an affidavit prepared 

earlier in a lengthy dispute).

60 G. Michael Fenner, Law Professor Reveals Shocking Truth About Hearsay,

62 UMKC. L. REV. 1, 30 (1993) (predicting that the ancient documents 

exception “will be applied more frequently and more frequently it will be 

applied to prove essential elements of the case.”).

61 FED. R. EVID. 803(6).

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as a showing that the record is one of regularly conducted 

activity.62 Other exceptions, such as for excited utterances and 

present sense impressions, contain their own detailed 

admissibility requirements.63 In contrast, all that needs to be 

shown for an ancient document is that it is old enough and 

meets the low standards for authenticity (a requirement that 

must be met for any document).64 For ESI, age will be simple to 

establish because the information will be dated in the 

metadata.65 Indeed, the metadata attendant to a file will make 

it easier to show that it has not (or has) been suspiciously 

altered—thus making the authentication question that is the 

basis for the hearsay exception easier to solve than with 

hardcopy. In sum, while we once might have been able to 

tolerate the fallacy of the ancient documents exception—that 

authenticity establishes reliability of content—the prospect of 

more frequent use due to the prevalence of ESI requires more 

attention to the reliability of old information. 

III. ARGUMENTS AGAINST AN AMENDMENT TO RULE 

803(16)

This Article has hopefully made the case that the ancient 

documents exception to the hearsay rule is based on the faulty 

assumption that the authenticity of a document justifies 

admitting all of its contents for their truth—an assumption 

 

62 See, e.g., United States v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013) 

(finding a record inadmissible as a business record because it was not 

prepared in the regular course of business activity, but admissible under 

Rule 803(16)).

63 See FED. R. EVID. 803(1) (stating that to be admissible as a present sense 

impression, the statement must have been made at the time of the event 

to be proved, or immediately thereafter, and must describe the event); 

FED. R. EVID. 803(2) (stating that to be admissible as an excited utterance, 

the statement must have been made by the declarant while under the 

influence of a startling event, and it must relate to that event).

64 See, e.g., United States v. Kalymon, 541 F.3d 624, 633 (6th Cir. 2008) 

(“Suspicion does not go to the [factual] content of the document,” when 

considering whether the ancient document exception applies, but instead, 

“to whether the document is what it purports to be.”); United States v. 

Firishchak, 468 F.3d 1015 (7th Cir. 2006) (finding an ancient document 

admissible even though it would not satisfy any reliability-based hearsay 

exception).

65 Metadata is information about data that is not readily apparent on the 

screen view of the file. “Metadata includes information about the 

document or file that is recorded by the computer to assist in storing and 

retrieving the document or file . . . . [Metadata] includes file designation, 

create and edit dates, authorship, comments, and edit history.” SHIRA A.

SCHEINDLIN, DANIEL J. CAPRA & THE SEDONA CONFERENCE, ELECTRONIC 

DISCOVERY AND DIGITAL EVIDENCE: CASES AND MATERIALS 380 (2d ed. 

2012).

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that is problematically triggered by an arbitrary up-or-down 

time period. The Article has argued that the prevalence of ESI 

has led to a tipping point where we can no longer allow the 

exception to operate the way it has. But all that said, there are 

a number of counterarguments to amending Rule 803(16). 

A. How Prevalent and Retrievable Is Old ESI?

The two primary arguments for an amendment to Rule 

803(16) are: (1) courts are going to be overrun with unreliable 

old ESI; and (2) the necessity of the existing exception is 

undermined because facts can be proven by reliable, stored 

ESI. Both of these premises assume that there is a significant 

amount of ESI that is (or will soon be) over twenty years old 

and retrievable for use at trial. But is that assumption valid? 

There are many cases in which a party to litigation has moved 

for sanctions because their adversary has destroyed ESI.66

Preservation orders and the duty to preserve ESI take up much 

of litigators’ time—time that would seem unnecessary if ESI 

was not routinely being destroyed (made irretrievable) 

pursuant to records management policies of countless 

businesses.67 Many organizations delete e-mails automatically 

after a certain amount of time unless they are specifically 

saved or archived.68 So why should we be worried about an 

onslaught of old ESI? And how can we assume that old reliable 

ESI will be readily available so that an ancient documents 

exception is unnecessary?

In answering these questions, one must first separate out 

“lost” ESI from “deleted” ESI. An email is lost, for example, if 

the user did not delete it but simply cannot locate it through 

search options within her email account. But “lost” information 

like this is not destroyed and can be fairly easily retrieved. A 

Google search requesting “how to recover old emails” will 

produce step-by-step instructions for easy retrieval.69 So the 

focus for the question of “how much retrievable ESI is there?” is 

 

66 See generally Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 

2004) (seeking and obtaining sanctions after employees were instructed to 

destroy emails that were relevant to the plaintiff’s claims). 

67 For examples of disputes over records retention policies and preservation 

orders, see the materials in Chapter II of SCHEINDLIN, CAPRA & THE 

SEDONA CONFERENCE, supra note 65. See also Arthur Andersen LLP v. 

United States, 544 U.S. 696 (2005) (describing document destruction that 

amounted to obstruction of justice when retention policy was suspiciously 

implemented).

68 MATTHEWS, supra note 15, at 98. 

69 See How to Access Old Emails, EHOW, http://www.ehow.com/how_5070600

_access-old-emails.html (last visited Nov. 4, 2014).

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most importantly on information that has been deleted 

automatically (through a data management program) or by 

hand.

Generally speaking, even after ESI is deleted, it is 

retrievable before it is overwritten.70 Retrieval becomes more 

difficult, however, when ESI is overwritten, or, when a new file 

takes the place of the old file on the hard drive.71 Many 

operating systems are likely to overwrite deleted data that is 

twenty years old.72 However, hundreds of software companies 

specialize in restoring deleted and overwritten data, even from 

computers that have been severely damaged. For example, 

Computer Checkup Premium offers a program specializing in 

undelete functions for only $39.95 per year.73 It is, in fact, 

questionable whether a standard records management system 

wipes its files completely simply by overwriting them. 

Certainly, the possibility of wiping a file becomes more and 

more unlikely as technology advances. For example, magnetic 

force microscopy (MFM) is a recently developed technique that 

makes it more difficult to wipe deleted data simply by 

overwriting it.74 Thus, there is a solid claim that even deleted 

 

70 See MATTHEWS, supra note 15, at 120, 205; Why Deleted Files Can Be 

Recovered, HETMAN SOFTWARE, http://hetmanrecovery.com/recovery_news

/why-deleted-files-can-be-recovered.htm (last visited Nov. 4, 2014) (“If you 

run a data recovery tool in a timeframe when the file has been deleted but 

its disk space not yet used by another file, you will be able to get that file 

back. Of course, many things depend on what kind of a tool you’ll be 

using.”).

71 See D Lamberti, How to Perform Hard Drive Recovery After Overwrite, 

BRIGHT HUB, http://www.brighthub.com/computing/hardware/articles/9442

0.aspx (last updated Mar. 28, 2011) (“Whenever we store a document in a 

PC, and then store another document with the same name and in the 

same location of the disk, Windows alerts us, inquiring if we’re certain we 

want to overwrite the original document. If we choose Yes here, the 

original document is overwritten, and from that point going back to alter 

our choice is not possible.”).

72 See Recover Lost Files and Deleted Emails, PARETO LOGIC, http://www

.paretologic.com/products/datarecovery/pro/index.aspx (last visited Nov. 4, 

2014); see also Daniel Feenberg, Can Intelligence Agencies Read 

Overwritten Data?, NAT’L BUREAU ECON. RES., http://www.nber.org/sysadmin/overwritten-data-guttman.html (stating that an attempt to retrieve 

overwritten data is likely to have an error rate).

73 SHAREWARE CENTRAL, http://www.sharewarecentral.com/search.html?q=co

mputer+checkup+premium (last visited Nov. 4, 2014).

74 MFM “is a technique for imaging magnetization patterns with high 

resolution and minimal sample preparation. The technique is derived 

from scanning probe microscopy (SPM) and uses a sharp magnetic tip 

attached to a flexible cantilever placed close to the surface to be analyzed, 

where it interacts with the stray field emanating from the sample.” Peter 

Guttman, Secure Deletion of Data from Magnetic and Solid-State Memory, 

USENIX, http://www.usenix.org/legacy/publications/library/proceedings/

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ESI is reasonably accessible, and that claim gets stronger every 

day.75 On the other hand, it is fair to say that there will be 

some ESI that will be obtainable only through extraordinary 

efforts, such as information on an outdated program on an old 

hard-drive.76

In addition to software that can recover overwritten data, it 

is now a common practice for data to be backed up in alternate 

locations, such as in cloud storage, even if it is deleted from a 

particular computer or server.77 Businesses and lawyers have 

discovered the importance of backing up old files.78 Computer 

forensic experts have found multiple ways to access cloudbased email and other information. For example, with respect 

 

sec96/full_papers/gutmann/index.html (last updated Jan. 10, 2003). 

Because of developments such as MFM, examination of a disk with an 

electron microscope “can still reveal the previous contents of the wiped 

area, because the obliterating bytes are not written in exactly the same 

tracks as the original data . . . .” Id.

75 See Clayton L. Barker & Philip W. Goodin, Discovery of Electronically 

Stored Information, 64 J. MO. B. 12, 15 (2008). In Lozoya v. Allphase 

Landscape Constr. Co., Civil Action No: 12-cv-1048-JLK, 2014 WL 222326 

(D. Colo. Jan. 21, 2014), the court found that information on the plaintiff’s 

computers could not be considered unavailable until a forensic expert fully 

examined the machines. The case suggests a distinct trend toward 

recognizing that retrieving old ESI is much less cumbersome or expensive 

than it once was.

76 See Jack Halprin, Sarah M. Montgomery & Hon. David C. Norton, 

Preserving and Protecting: How to Handle Electronically Stored 

Information, YOUTUBE (Mar. 28, 2013), https://www.youtube.com/watch

?v=YUQq-03-NUfI (noting that “extraordinary measures” may be 

necessary to get data off a very old hard drive).

77 Use of virtual servers—cloud storage—is a “way to use the storage space 

and hardware on a computer or server efficiently to store more than one 

operating system or more than one server on the same physical device.” 

MATTHEWS, supra note 15, at 102. Virtual systems have “become quite 

popular as a way to save energy, space, and resources in our everexpanding information universe.” Id.; see also MICHAEL R. ARKFELD,

PROLIFERATION OF “ELECTRONICALLY STORED INFORMATION” (ESI) AND 

REIMBURSABLE PRIVATE CLOUD COMPUTING COSTS 4 (2011), available at 

http://www.lexisnexis.com/documents/pdf/20110721073226_large.pdf.

Storage in the cloud results in permanent retention. See The Lifespan of 

Storage Media, CRASHPLAN (2012), http://www.code42.com/crashplan

/medialifespan.

78 Cf. Wells Anderson, How to Protect Electronic Documents—From Yourself, 

AMERICAN BAR ASSOCIATION, June 2003, http://www.americanbar.org

/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index

/protect.html (“In addition to a nightly backup routine, consider running a 

backup utility that operates continuously or periodically throughout the 

day, copying new and changed files to an alternative location such as 

another computer's local hard drive.”). The cost for a gigabyte of storage 

was $2,000,000 in 1956; in 2009 the cost was less than $1. Jason R. Baron 

& Ralph C. Losey, e-Discovery: Did You Know?, YOUTUBE (Feb. 11, 2010), 

https://www.youtube.com/watch?v=bWbJWcsPp1M.

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to email, messages “can be downloaded to a computer in 

Outlook, to applications that preserve the email from the cloud” 

and thus the emails are “reasonably accessible.”79

Moreover, the very existence of spoliation disputes means 

that more and more ESI is now being preserved. The 2006 

amendments to the Federal Rules of Civil Procedure’s ediscovery rules have imposed duties to retain ESI.80 Preserving 

ESI is “important to companies that may ever be in a litigation 

or employment dispute, or that have to comply with the 

Sarbanes-Oxley Act, Foreign Corrupt Practices Act, PATRIOT 

Act, or other statutory or regulatory requirements. That’s 

virtually every public and private company of every size.”81

The significance of the 2006 amendments “becomes even 

more striking when one considers that nearly ninety percent of 

U.S. corporations become engaged in lawsuits; and that at any 

one time, the average $1 billion company in the U.S. faces 147 

lawsuits.”82 As such, more and more ESI will be preserved due 

to retention obligations.

But even if records retention programs do not prevent the 

mass deletion of ESI by organizations, and even assuming that 

the ESI cannot be retrieved through reasonable efforts once 

deleted, there would remain many reasons to be concerned 

about overuse of the ancient documents exception as applied to 

ESI. For one thing, much of the ESI that is relevant to 

litigation is not generated by organizations with records 

management programs. Rather, it is generated by individuals 

in the form of personal emails, Tweets, Facebook posts, text 

messages, chat room dialog, voice mails, and on and on.83 Much 

of this information is unlikely to be deleted by individuals, and 

even if it is, the ESI will often be available from others who had 

access to the information (such as the recipients of the Tweet, 

 

79 Joshua Gilliland, Nitty Gritty Discovery Requests, BOW TIE LAW’S BLOG

(Jan. 29, 2014), http://bowtielaw.wordpress.com/2014/01/29/nitty-grittydiscovery-requests.

80 See generally Richard P. Marcus, The 2006 Amendments to the Federal 

Rules of Civil Procedure Governing Discovery of Electronically Stored 

Information: Fitting Electronic Discovery into the Overall Discovery Mix, 

in SCHEINDLIN, CAPRA & THE SEDONA CONFERENCE, supra note 65, at 1-17.

81 Linda Volonino, Janice C. Sipior & Burke T. Ward, Managing the Lifecycle 

of Electronically Stored Information, 24 INFO SYSTEMS MGMT. 231, 232 

(2007).

82 Id.

83 Professor Jeffrey Bellin has documented the increased use in litigation of 

ESI generated by individuals in their personal lives. See, e.g., Jeffrey 

Bellin, eHearsay, 98 MINN. L. Rev. 7 (2013); Jeffrey Bellin, Facebook, 

Twitter, and the Uncertain Future of Present Sense Impressions, 160 U.

PA. L. REV. 331 (2012).

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or the third-party provider).84 These personal assertions will 

often be made without any verification at all—a Facebook post

in the privacy of one’s own home, for example—so there is 

reason to be concerned about their reliability. That concern is 

not at all alleviated by the fact that the assertion is old. 

Second, web postings are preserved for posterity by the 

Internet Archive. Indeed, the express goal of the Internet 

Archive is to “prevent the Internet . . . and other ‘born-digital’ 

materials from disappearing into the past.”85 Thus, records 

management programs do nothing to alleviate the threat of 

overuse of the ancient documents exception as applied to the 

overwhelming amount of information that is posted on the 

web.86 The same can be said for other types of ESI. For 

example, the Google library project estimates that there are 

nearly 130 million books,87 and it has so far digitized over 20 

million of them, most of which are old and out of print. These 

books are now easily accessible, with many more to come.88

That means assertions of fact in those books are automatically 

admissible under the ancient documents exception so long as

the books are more than twenty years old.

 

84 See, e.g., Seth P. Berman et al., Web 2.0: What’s Evidence Between 

“Friends”?, BOSTON B. J. (2009) (noting that Facebook posts can be 

obtained from the computers of any participant in a Facebook 

conversation, or “from Facebook itself”); Biz Stone, Tweet Preservation, 

TWITTER BLOGS (Apr. 14, 2010) http://blog.twitter.com/2010/04/tweet

.preservation.html (stating that Twitter is now donating “access to the 

entire archive of public Tweets to the Library of Congress for preservation 

and research”). 

85 About the Internet Archive, THE INTERNET ARCHIVE, https://archive.org/

about (last visited Nov. 4, 2014).

86 See Daniel J. Solove, Privacy and Power: Computer Databases and 

Metaphors for Information Privacy, 53 STAN. L. REV. 1393, 1412 (2001) 

(“[A]lmost everything on the Internet is being archived . . . . We are 

accustomed to information on the web quickly flickering in and out of 

existence, presenting the illusion that it is ephemeral. But little on the 

Internet disappears or is forgotten, even when we delete or change the 

information.”).

87 Ben Parr, Google: There Are 129,864,880 Books in the Entire World, 

MASHABLE, Aug. 5, 2010, http://mashable.com/2010/08/05/number-of-books

-in-the-world.

88 Claire Cain Miller & Julie Bosman, Siding with Google, Judge Says Book 

Search Does Not Infringe Copyright, N.Y. TIMES, Nov. 14, 2013, 

http://www.nytimes.com/2013/11/15/business/media/judge-sides-with-goog

le-on-book-scanning-suit.html. In November 2013, Judge Chin, sitting by 

designation in the S.D.N.Y, paved the way for Google to continue 

digitizing these books despite copyright objections by ruling that the 

digitization constituted “fair use” under the copyright laws. Authors 

Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).

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Finally, it is important to remember that the concern about 

deletion of ESI in the case law arises in the context of 

spoliation claims. That is, a party is complaining that its 

opponent deleted ESI that was unfavorable to the opponent’s 

position. But that kind of ESI, were it preserved and in fact 

unfavorable, would be admissible against the record-keeper 

over a hearsay objection as party-opponent statements.89

Consequently, there is a litigation-based incentive to delete it 

(if you can get away with it). But the problem posed by ESI 

with respect to the ancient documents exception is that the 

record-keeper would have an incentive to keep information that 

is favorable to its position. It will not matter whether that 

information is reliable. Indeed there will be an incentive to 

keep self-serving, unreliable accounts as ESI because the cost 

of preserving that information will be so low.

In sum, the fact that some or even much of the world’s ESI 

is deleted will do little to prevent overuse of the ancient 

documents exception as applied to ESI.90

B. Does the Ancient Documents Exception Even 

Apply to ESI?

ESI that is stored for twenty years is not like a magazine 

sitting in the attic for twenty years. Electronic data is dynamic. 

It is changed, at least in some ways, by the action of accessing 

it, viewing it, or moving it. “[N]onapparent information that 

 

89 FED. R. EVID. 801(d)(2).

90 One might wonder whether information on digital media might simply 

degrade without any attempt to destroy it. Crashplan, an organization 

that specializes in managing and protecting customers’ digital data, 

created an infographic showing the expected lifespans of various types of 

storage mediums. Out of the twenty-five types of storage mediums 

analyzed, ten of them are expected to last longer than twenty years under 

conditions of regular use. Among the most resilient are the more modern 

technologies, such as memory cards and hard drives. However, some 

extremely old technologies such as Super 8 Film (created in 1965) and 

Vinyl Records (created in the late 1800s) can last for extremely long 

periods—seventy years of regular use for Super 8 Films, and one hundred 

years for Vinyl Records. Moreover, the number of storage mediums able to 

last over twenty years increases significantly if the medium remains 

unused or under appropriate care, as is likely to be the case if the medium 

is used for archival purposes. Of the twenty-five types of storage mediums 

analyzed, twenty of them are expected to last twenty years or longer if 

used for archival purposes (and cared for as such). See CRASHPLAN, The 

Lifespan of Storage Media (2012), http://www.code42.com/crashplan/

medialifespan. Some Blu-Ray discs purport to be able to last essentially 

forever. The M-Disc claims that “once [data] is written [on the disc], your 

documents, medical records, photos, videos and data will last up to 1,000 

years.” What is M-Disc?, M-DISC, http://www.mdisc.com/what-is-mdisc

(last visited Aug. 6, 2014).

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can become part of the electronic data is called metadata.”91

The dynamic nature of ESI might seem to be an ill fit for an 

ancient documents exception if it is thought to be grounded in 

the authenticity that comes from a document being in “a place” 

where it would “likely be.”92 There would be no worry about the 

ancient documents hearsay exception if old ESI could not be 

authenticated due to its dynamic nature—because, as stated 

above, authenticity is the requirement for satisfying the 

hearsay rule under Rule 803(16).

In fact, the dynamic nature of stored ESI will not raise a 

substantial bar to the use of the ancient documents hearsay 

exception. This is so for a number of reasons. First, Rule 

901(b)(8) specifically contemplates that the age of an electronic

document will provide a ground of authenticity for ESI. That 

rule covers “data compilation” in any form. If the mere fact that 

an electronic document was changed in some immaterial 

respect due to storage were enough to disqualify that document 

from being found authentic under Rule 901(b)(8), then the 

drafters would not have covered data compilations in that rule. 

It makes no sense to write a rule of authenticity that covers 

information that is per se disqualified from being authenticated 

under that rule. True, it is probably fair to state that none of 

the original Advisory Committee members were experts on the 

technicalities of storage of electronic information. But they 

could certainly be expected to know, even then, that electronic 

information was not stored in the same way as a magazine or 

library book. Thus, the specific inclusion of data compilations 

 

91 MATTHEWS, supra note 15, at 17. For a discussion of metadata, see 

SCHEINDLIN, CAPRA & THE SEDONA CONFERENCE, supra note 65, at 356-382. 

It should be noted that system metadata—information about an electronic 

file that is generated by a computer without human input—is not hearsay 

and so would present no concerns for the ancient document exception or 

any other exception to the hearsay rule. This is because system metadata 

is machine-generated and a machine is not a “declarant” who makes a 

“statement” within the meaning of the hearsay rule. United States v. 

Moon, 512 F.3d 359 (7th Cir. 2008) (printout from gas chromatograph is 

not hearsay); United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005) 

(header information accompanying an image file was not hearsay because 

it was automatically generated). On the other hand, application 

metadata—including such information as spreadsheet formula or redline 

changes in word processing documents—is the result of human input and 

so “may constitute hearsay, just as any other ‘statement’ made by a 

human being.” THE SEDONA CONFERENCE WORKING GROUP ON ELECTRONIC 

DOCUMENT RETENTION & PRODUCTION, THE SEDONA CONFERENCE 

COMMENTARY ON ESI EVIDENCE & ADMISSIBILITY 10 (Kevin F. Brady et al. 

eds., 2008). Consequently, the existence of application data in old ESI 

further raises the risk of overuse of the ancient documents exception to 

the hearsay rule.

92 FED. R. EVID. 901(b)(8).

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in Rule 901(b)(8) is a clear indication that the dynamic nature 

of ESI storage does not per se disqualify it from authentication 

under Rule 901(b)(8), and therefore does not disqualify the 

contents from automatic admissibility under Rule 803(16).

Moreover, the best reading of the language of Rule 901(b)(8) 

covers old ESI even if it has been accessed, viewed, or so on 

over a twenty-year period. This is because if ESI is found on a 

server, hard drive, cloud, etc., it really is in a “place” where it 

would “likely be.” Nothing in Rule 901(b)(8) requires a 

document to have been placed in a hermetically sealed and 

immovable container for twenty years; nothing in the Rule 

prohibits authenticating a document that has been viewed, 

accessed, or moved repeatedly over twenty years, so long as it 

is found in a place where it would likely be. So if a frequently 

read or moved magazine can be authenticated as an ancient 

document, there is every reason to give the same basic 

treatment to frequently accessed, viewed or moved ESI.

But even if Rule 901(b)(8) were found inapplicable to 

authenticate ESI that had been accessed, viewed, or moved, 

that would not deter the admissibility of old ESI under the 

ancient documents exception to the hearsay rule. Rule 803(16) 

operates as an exception for a more-than-twenty-year-old 

document whenever that document is found authentic on any 

ground. It does not require a finding of authenticity under Rule 

901(b)(8). Thus, just like new ESI, old ESI can be 

authenticated in any number of ways, as indicated by the 

scores of cases involving challenges to the authenticity of ESI.93

It must be remembered that the threshold for the court’s 

determination of authenticity under Rule 901 is not high: “the 

court need not find that the evidence is necessarily what the 

proponent claims, but only that there is sufficient evidence that 

the jury ultimately might do so.”94 The possibility of alteration 

“[is] not and cannot be the basis for excluding ESI as 

unauthenticated as a matter of course, any more that it can be 

the rationale for excluding paper documents.”95

The following is a non-inclusive list of possibilities for 

authenticating old ESI by means other than Rule 901(b)(8):

● ESI of various types can be authenticated by 

distinctive characteristics and circumstantial 

evidence under Rule 901(b)(4).96

 

93 For a general discussion about authenticating ESI, see SCHEINDLIN, CAPRA 

& THE SEDONA CONFERENCE, supra note 65, at 754-67.

94 United States v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006).

95 Id. at 40.

96 See, e.g., United States v. Lundy, 676 F.3d 444, 454 (5th Cir. 2012) 

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● Any public record, including data compilations by a 

public office, can be authenticated under Rule 

901(b)(7), upon a showing that the record is from 

“the office where items of this kind are kept.” There 

is no requirement that the records be reliable to be 

admissible.97 Thus when an old public record is 

authenticated under Rule 901(b)(7), all the 

assertions in the record are admissible for their 

truth even though they would not be trustworthy 

enough to be admissible under the hearsay exception 

for public records.98 That is, the ancient documents 

exception renders the limits of the public records 

exception irrelevant for all of the digital data of the 

government that is more than twenty years old. 

● Under Rule 901(b)(9), ESI can be authenticated 

when the proponent provides enough information for 

a reasonable person to find that the electronic data 

is the product of a system that “produces an accurate 

result.”99 Again, “accurate” does not refer to the 

reliability of assertions in the document, only that 

the output is not substantially changed from the 

input.100

● Under Rule 902(5), official publications of a public 

authority, including website content, are selfauthenticating—no extrinsic evidence of 

authenticity is required.101

 

(finding text messages to be properly authenticated by circumstantial 

evidence: specifically, that the defendant, when arrested, was texting and 

phoning the victim); Safavian, 435 F. Supp. 2d at 39-42 (noting that “@”

symbol and email addresses are distinctive characteristics sufficient for 

authentication).

97 See, e.g., United States v. Meienberg, 263 F.3d 1177, 1181 (10th Cir. 2001) 

(“Any question as to the accuracy of the printouts, whether resulting from 

incorrect data entry or the operation of the computer program, as with 

inaccuracies in any other type of business records, would have affected 

only the weight of the printouts, not their admissibility.”) (quoting United 

States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988)).

98 FED. R. EVID. 803(8) (requiring exclusion if the opponent shows that the 

source of information or other circumstances indicates a lack of 

trustworthiness).

99 FED. R. EVID. 901(b)(9). 

100 See, e.g., United States v. Washington, 498 F.3d 225 (4th Cir. 2007) 

(establishing the reliability of computer read-out of electronic forensic 

analysis of defendant’s blood sample for drug and alcohol content by 

showing that the machine and functions are reliable, that it was correctly 

adjusted or calibrated, and that the data put into the machine was 

accurate). 

101 See, e.g., Williams v. Long, 585 F. Supp. 2d 679, 689-90 (D. Md. 2008) 

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● Websites can be authenticated by presenting 

information from the “Wayback Machine.”102

● Testimony of a witness with personal knowledge 

about the ESI that is presented to the court can 

often be sufficient evidence of authenticity.103

● Posts on Facebook, YouTube, and other accountbased social media can be authenticated not only by 

distinctive characteristics but also by the 

demonstration of use of passwords and email 

addresses.104

● Temporary Internet files, even if deleted, can be 

authenticated by the forensic expert who retrieved 

them.105

In sum, there are myriad ways to authenticate ESI that 

certainly apply to ESI more than twenty years old, even if 

authentication as an ancient document were not possible under 

Rule 901(b)(8).106 Consequently, the risk is real that the 

 

(finding printed copies of state agencies’ websites to be selfauthenticating).

102 See, e.g., Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 

3293, 2004 WL 2367740, at *6 (N.D. Ill. Oct. 15, 2004) (approving the use 

of the Internet Archive’s “wayback machine” to authenticate websites as 

they appeared on various dates relevant to the litigation).

103 FED. R. EVID. 901(b)(1); see, e.g., Buzz Off Insect Shield LLC v. S.C. 

Johnson, 606 F. Supp. 2d 571, 594 (M.D.N.C. 2012) (authenticating 

website where witness testified that he typed a URL, logged onto and 

viewed the site, and that the printout offered at trial fairly reflected what 

she saw); Adamah v. Tayson, No. 09-CV-5477 (FB), 2010 U.S. Dist. Lexis 

54172, at *9 n.4 (E.D.N.Y. May 27, 2010) (allowing testimony of 

participant to an exchange of texts to establish authenticity). 

104 See, e.g., United States v. Hassan, 742 F.3d 104 (4th Cir. 2014) (finding 

that trial judge did not abuse his discretion in admitting against two 

defendants Facebook pages and videos hosted on YouTube and 

maintained by Google because the Facebook pages were captured as 

screenshots and displayed the defendants’ user profiles and postings; the 

screenshots included photos and links to the YouTube videos; the 

defendants had posted their personal biographical information on the 

Facebook pages along with quotations and listings of their interests; each 

Facebook page contained a section for postings from other users; and the 

prosecution had satisfied its low burden of establishing authenticity under 

Rule 901(a) by tracking the Facebook pages and Facebook accounts to 

Hassan’s and Yaghi’s email addresses).

105 United States v. Johnson, No. 04-CR-12-LRR, 206 WL 2548913, at *3-5

(N.D. Iowa Aug. 31, 2006).

106 This is not to say that all ESI, whether new or old, will automatically be 

found authentic. Certain types of ESI present thorny problems of 

authentication. For example, database information presents challenges 

because it is not just a stand-alone document sitting in a server, but 

rather constitutes an amalgamation of separate data elements. Certainly 

there will be special problems in establishing authenticity for this 

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ancient documents exception to the hearsay rule—simply 

equating authenticity with admissibility of hearsay—will 

become an open door to admitting unreliable hearsay in vast 

amounts of old ESI. 

C. No Existing Problem to Address?

Another possible argument against amending the ancient 

documents exception as applied to ESI is that it is not affecting 

the courts at this point in time. One searches in vain for a 

reported case addressing admissibility of ESI under the ancient 

documents exception. While this of course does not mean that 

ESI has never been offered under Rule 803(16), it is surely a 

rough indication that the problem of using the ancient 

documents exception to admit unreliable ESI is not currently 

widespread. 

As discussed above, the Advisory Committee does not 

propose an amendment to the Rules of Evidence unless the 

amendment would solve a real problem, so it might be argued 

that amending Rule 803(16) due to a projected but not-yetexisting onslaught of old ESI is inappropriate. The 

counterargument is that technology and the use of technology 

at trials develops very quickly. Trying to keep up with these 

changes is very difficult in the context of the deliberate nature 

of the rulemaking process. Enacting an amendment to the 

national rules of procedure takes a minimum of three years.107

Given all the ESI that will become potentially admissible 

without regard to reliability under Rule 803(16) in the next 

three or four years, it behooves the rulemakers to get out ahead 

of the curve. It would of course not be completely unreasonable 

to wait for the problem to rear its head in the courts. The 

consequence of waiting is not that the rule would lag behind 

 

amalgamated information; and as to ancient documents, there may be 

some difficulty in determining whether the amalgamated information is in 

a place where it would most likely be. See generally THE SEDONA 

CONFERENCE, THE SEDONA CONFERENCE DATABASE PRINCIPLES:

ADDRESSING THE PRESERVATION AND PRODUCTION OF DATABASES AND 

DATABASE INFORMATION IN CIVIL LITIGATION (David J. Kessler et. al eds., 

2011). Additionally, there may be difficulty in determining the author of 

certain ESI if it comes from different sources, such as a dashboard in a 

corporate intranet. See THE SEDONA CONFERENCE COMMENTARY ON ESI

EVIDENCE & ADMISSIBILITY, supra note 91, at 12. But the instances 

demonstrated in text, both under Rule 901(b)(8) and other rules of 

authentication, definitely indicate a risk that much ESI will be admissible 

for its truth simply because it is pretty easily authenticated.

107 The rulemaking process and its deliberate pace are described well by 

Peter G. McCabe in Renewal of the Federal Rulemaking Process, 44 AM. U.

L. REV. 1655, 1671-76 (1995).

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emerging technology, but simply that unreliable hearsay may 

well be admitted en masse for a few years. The Republic will 

survive. Nonetheless, it is possible to avoid that problem, or at 

least to have a change to the ancient documents exception on 

the rulemaking radar so that any damage caused by admitting 

unreliable hearsay can be limited.

D. Can the Problem of Unreliable Old ESI Be 

Handled By Use of Rule 403?

Federal Rule of Evidence 403 provides that a court may 

exclude relevant evidence “if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” It might 

be argued that amending Rule 803(16) to prevent admission of 

unreliable ESI is not necessary because a court presented with 

old unreliable ESI can and will exclude it under Rule 403. The 

argument would be that unreliable old ESI is not “probative” 

and will mislead the jury. But there are at least three reasons 

why Rule 403 will not be as effective as the direct approach of 

amending Rule 803(16) to close the loophole for unreliable ESI. 

The first and most important reason is that when a court 

assesses the probative value of a proffered statement, it does 

not consider the reliability of that statement. As many courts 

have recognized, “Rule 403 is not to be used to exclude 

testimony that a trial judge does not find credible.”108 Rather, 

“[w]eighing probative value against unfair prejudice under 

[Rule 403] means probative value with respect to a material 

fact if the evidence is believed, not the degree the court finds it 

believable.”109 Take a case in which the defendant is charged 

with a “cold case” murder and the government offers a text 

message from a drug addict who says he saw the murder on the 

 

108 E.g., Gardner v. Galetka, 568 F.3d 862, 876 (10th Cir. 2009); see also

Western Indus. v. Newcor Canada, Ltd., 739 F.2d 1198, 1202 (7th Cir. 

1984) (finding that the trial court erred in excluding statements because it 

did not believe the witness who made them).

109 Bowden v. McKenna, 600 F.2d 282, 284 (1st Cir. 1979) (emphasis added); 

see also Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1149 (5th Cir. 1981) 

(finding that the district court erred in excluding blood test results under 

Rule 403 because it found the test to not be “credible” or “reliable”). In 

Ballou, the Fifth Circuit explained that “Rule 403 does not permit 

exclusion of evidence because the judge does not find it credible” and that, 

when applying Rule 403, district courts should “determine[] the probative 

value of the test results if true, and weigh[] that probative value against 

the danger of unfair prejudice, leaving to the jury the difficult choice of 

whether to credit the evidence.” Id. (quoting United States v. Thompson, 

615 F.2d 329, 333 (5th Cir. 1980)).

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way back from his LSD dealer; or a disgruntled employee who, 

having been fired for stealing from his employer, sends a Tweet 

falsely stating that the employer is dumping toxic waste. Even 

if those electronic communications are patently unreliable 

hearsay, they cannot be excluded under Rule 403 because they 

are very probative of the facts related if believed. In other 

words, once the hearsay is found admissible under a hearsay 

exception, the judge cannot exclude it under Rule 403. 

Unreliable hearsay has to be excluded under the hearsay rule 

or not at all. 

It may seem anomalous that such unreliable evidence can, 

and indeed must, be admitted insofar as Rule 403 is 

concerned,

110 but the result is understandable in light of the 

different roles played by different evidence rules. With respect 

to out-of-court statements offered for their truth, it is the 

hearsay rule that screens for reliability, and if the statement 

fits the hearsay exception, the Federal Rules are done 

regulating its reliability; reliability then becomes a question of 

weight for the fact finder.111 The problem with old ESI is that

the ancient documents exception fails in the mission of the 

hearsay rule.112

 

110 Rule 403 does have a role to play if a statement is offered for a nonhearsay purpose but the jury could misuse it for its truth. That risk of 

misuse constitutes prejudicial effect, which must be balanced against the 

probative value of the statement as to the not-for-truth purpose. See, e.g., 

United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) (finding that a statement 

accusing the defendant of criminal conduct offered to prove the 

“background” of the police investigation should have been excluded 

because its probative value in proving “background” was substantially 

outweighed by the risk that the jury would use the statement as proof of 

the defendant’s criminal conduct, i.e., for its truth). But if the statement is 

properly admitted under a hearsay exception, and therefore can be used 

as proof of the fact asserted, then Rule 403 may not be used to exclude it 

on reliability grounds.

111 See, e.g., United States v. DiMaria, 727 F.2d 265, 271 (2d Cir. 1984) 

(finding that a statement that fit the requirements of a hearsay exception 

could not be excluded even though the trial judge found it to be 

untrustworthy: “False it may well have been but if it fell within [the 

exception], as it clearly did if the words of that Rule are read to mean 

what they say, its truth or falsity was for the jury to determine.”).

112 Notably, there are existing cases finding that ancient hardcopy is 

admissible even if unreliable, and these cases do not resort to a Rule 403 

analysis to exclude the unreliable evidence. See, e.g., George v. Celotex 

Corp., 914 F.2d 26, 30-31 (2d Cir. 1990) (noting that, if a document is 

authenticated as an ancient document, lack of trustworthiness is a matter 

of weight and not admissibility, as Rule 803(16) contains no independent 

requirement of trustworthiness); Ammons v. Dade City, 594 F. Supp. 1274 

(M.D. Fla. 1984) (finding newspaper articles more than twenty years old 

admissible for their truth without an independent showing of reliability, 

while newspapers less than twenty years old were excluded).

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Second, even if Rule 403 could somehow be used to screen 

out unreliable old ESI that would otherwise be admissible 

under the ancient documents hearsay exception, the balancing 

test of Rule 403 is geared heavily toward admissibility—the 

prejudicial effect must substantially outweigh the probative 

value for evidence to be excluded. As the courts have said, the 

trial court’s power to exclude evidence under Rule 403 must be 

invoked “sparingly.”113 Because exclusion is essentially saved 

for egregious cases, Rule 403 could not be expected—even if it 

were applicable—to be an effective device to exclude all 

unreliable old ESI.

Finally, it goes without saying that a Rule 403 balancing is 

heavily case-dependent and highly discretionary.114 That caseby-case approach—even assuming Rule 403 could be applied—

is bound to be less effective than a rule that either prohibits old 

ESI or at least conditions admissibility on a finding of 

necessity. For all these reasons, Rule 403 is not the solution to 

the problem of unreliable ESI being admitted for the truth of 

its contents under the ancient documents hearsay exception. 

E. Ancient Hardcopy Documents Might Still Be 

Necessary in Some Litigation

A final argument in response to amending the ancient 

documents hearsay exception is a cautionary one. Even if old 

ESI is preserved and accessible, there will still be some cases in 

which the only evidence available is old hardcopy. For example, 

cases involving immigration violations for fraudulent entry into 

the country often must be proven by old hardcopy found in 

some archive.115 Courts have also admitted old hardcopy in 

asbestos cases, CERCLA cases, property disputes, and stolen 

art cases, among others.116

 

113 Herrington v. Hiller, 883 F.3d 411, 414 (1989); see also Dartez v. 

Fibreboard Corp., 765 F.2d 456, 461 (5th Cir. 1985) (“[B]ecause Rule 403 

permits the exclusion of probative evidence it is an extraordinary remedy 

that must be used sparingly.”). 

114 See, e.g., Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1332 (6th Cir. 

1994) (noting that Rule 403 rulings are highly discretionary and appellate 

courts often affirm Rule 403 decisions “either way” they come out).

115 See, e.g., United States v. Demjanjuk, 367 F.3d 623 (6th Cir. 2004) 

(finding that records of Nazi activity during World War II made defendant 

ineligible for a visa).

116 E.g., Celotex Corp., 914 F.2d at 29-30 (finding that a report showing that 

a study of asbestos plants was prepared in 1947 was evidence that the 

company knew about asbestos risk); In re Paysage Bords de Seine, 991 F. 

Supp. 2d 740 (E.D. Va. 2014) (using old museum records in a case about 

ownership of a work of art); Tremont LLC v. Halliburton Energy Servs., 

Inc., 696 F. Supp. 2d 741 (S.D. Tex. 2010) (admitting old records 

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In none of the above-cited cases was there ESI (let alone 

reliable ESI) available to prove what the hardcopies were 

offered to prove. Accordingly, one could argue that even if an 

amendment were necessary to regulate old ESI, any 

amendment should preserve the exception in cases where 

necessity can be shown. Put another way, even though the 

rationale of the ancient documents exception is questionable 

because necessity trumps reliability, that rationale may still be 

applicable to certain actions today, despite the development of 

ESI. One of the drafting alternatives below provides for a 

necessity carve-out. 

IV. DRAFTING ALTERNATIVES

The Federal Rules of Evidence Advisory Committee should 

amend Rule 803(16) in order to prevent the admission of 

terabytes of old and unreliable ESI. In this Part, I will propose 

several modifications to the Rule that, if adopted, would reduce 

or eliminate the problems described above. 

A. Deletion

One alternative is simply to delete Rule 803(16). As stated 

above, the basic problem with the rule is that it confuses the 

authenticity of a document with the reliability of its contents. 

It simply does not follow that because a document is genuine, 

the statements in the document are reliable. One could argue 

that necessity alone cannot justify the use of unreliable 

evidence and that any hearsay statement that is old and that 

should be admissible (because it is reliable) can be offered 

under the residual exception to the hearsay rule117—you do not 

need an ancient documents exception to admit old but reliable 

evidence. Indeed the only case cited by the Advisory Committee 

in support of Rule 803(16) was one in which the court found an 

old document admissible not because it was an ancient 

document, but rather because it carried the circumstantial 

guarantees of trustworthiness that would support admission 

today under the residual exception.118

How would deletion be implemented? The rulemaking 

formula in such a situation is to delete the text, keep the rule 

 

indicating disposal of waste in a CERCLA case under Rule 803(16)); 

Koepp v. Holland, 688 F. Supp. 2d 65 (N.D.N.Y. 2010) (admitting old deed 

as an ancient document in a property dispute).

117 FED. R. EVID. 807 (establishing a hearsay exception for statements having 

circumstantial guarantees of trustworthiness equivalent to the hearsay 

exceptions contained in Rules 803 and 804).

118 See FED. R. EVID. 803(16) advisory committee’s note (citing Dallas County 

v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961)).

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number open (so as not to upset electronic searches relying on 

existing rule numbers), and provide a committee note 

explaining the motivation for the deletion. Thus, the deletion 

would look something like this:

(16) Statements in Ancient Documents. A 

statement in a document that is at least 20 years 

old and whose authenticity is established.

[Abrogated].

And here is a possible Committee Note for the abrogation:

Committee Note. The ancient documents 

exception to the rule against hearsay has been 

abrogated. The exception was based on the 

premise that the contents of a document are 

reliable merely because the document is old. 

While it is appropriate to conclude that a 

document is genuine when it is old and located in 

a place where it would likely be—see Rule 

901(b)(8)—it does not follow that the contents of 

such a document are truthful. 

The ancient documents exception could 

once have been thought appropriate out of 

necessity due to the unavailability of other proof 

for old disputes and because the exception has 

been so rarely invoked. However, given the 

development and growth in quantity of 

electronically stored information, the exception 

has become less justifiable and subject to greater 

abuse. The need for an ancient document rule 

that does not qualify under any other hearsay 

exception has been diminished by the fact that 

reliable electronic information is likely to be 

available and can be used as proof under a 

number of hearsay exceptions. Abuse of the 

ancient document exception is possible because 

unreliable electronic information may be 

widespread and would be admissible under the 

exception simply because it has been preserved 

in a database for twenty years. 

One possible problem with abrogation is that it is a radical 

remedy in the context of the rulemaking process. No rule of 

evidence has been abrogated in the forty-year history of the 

Rules. Abrogation of Rule 803(16) is especially problematic 

because it would not only be based on changed circumstances, 

but would also be a concession that the original Advisory 

Committee (and the common law) was wrong in equating 

authenticity of a document with the reliability of statements in 

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the document. Moreover, the Advisory Committee has been 

especially wary about limiting hearsay exceptions and 

exemptions. The hearsay exceptions and exemptions have been 

amended on only four occasions since 1975. Only one of those 

amendments narrowed the coverage of a hearsay exception.119

The others expanded an exception’s or exemption’s coverage.120

Just recently, the Advisory Committee rejected calls to 

abrogate the hearsay exceptions for present sense impressions 

and excited utterances, the charge being that these exceptions 

were ill-conceived from the beginning.121 A total rejection of the 

ancient documents exception, even though supportable on the 

merits, thus creates some tension with the careful approach—

and respect for the original Advisory Committee—of the 

rulemakers. 

The remaining proposals consider ways to limit the risk of 

overuse of the ancient documents exception especially as 

applied to ESI, without the facially drastic remedy of 

abrogation. 

 

119 Rule 804(b)(3) was amended in 2010 to require the prosecution to show 

corroborating circumstances indicating trustworthiness before a 

declaration against penal interest can be admitted against a criminal 

defendant. See FED. R. EVID. 804(b)(3) advisory committee’s note to 2010 

amendment.

120 Rule 801(d)(2), the hearsay exemption for statements made by agents of a 

party-opponent, was amended in 1997 to allow a proponent to establish its 

burden of showing agency by offering the hearsay statement itself 

together with some independent evidence. See FED. R. EVID. 801(d)(2) 

advisory committee’s note to 1997 amendment. Rule 803(6), the business 

records exception, was amended in 2000 to allow the foundation 

requirements to be proved by a certificate rather than by testimony of a 

foundation witness. See FED. R. EVID. 803(6) advisory committee’s note to 

2000 amendment. Amendments to Rules 803(6)-(8) that took effect on 

December 1, 2014 clarify that once the foundational requirements of those 

exceptions are met, it is the opponent’s burden to show that the 

preparation or other circumstances indicate untrustworthiness. FED. R.

EVID. 803 advisory committee’s note to 2014 amendments. Finally, an 

amendment to Rule 801(d)(1)(A), the hearsay exemption for prior 

consistent statements, that also took effect December 1, 2014 expands the 

exemption to allow any consistent statement to be admitted for its truth if 

it is properly admissible to rehabilitate a witness’s credibility. FED. R.

EVID. 801 advisory committee’s note to 2014 amendments.

121 The suggestion for abrogating these exceptions—Rules 803(1) and (2), was 

made by Judge Posner in his concurring opinion in United States v. Boyce, 

742 F.3d 792, 801 (7th Cir. 2014). The Advisory Committee rejected the 

proposal because members were not convinced that the exceptions were 

without merit and were concerned that the abrogation of two important 

exceptions to the hearsay rule would be a radical remedy. See Minutes of 

the Meeting, ADVISORY COMM. ON EVIDENCE RULES 5, Mar. 2014 (on file 

with author).

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B. Limit the Exception to Hardcopy Documents

One possible reason for limiting the exception to hardcopy 

documents, as discussed above, is that the ancient documents 

exception may be thought to continue to play a useful role in 

certain kinds of litigation in which critical hardcopy documents 

are very old and impossible to qualify under other exceptions. 

An amendment with this thought in mind would look as 

follows:

(16) Statements in Ancient Documents. A 

statement in a document—but not including 

information that is electronically stored—that is 

at least 20 years old and whose authenticity is 

established. 

The major problem with an amendment that carves out 

electronic information is that the Federal Rules of Evidence 

have a rule that equates electronic evidence with hardcopy. 

Rule 101(b)(6), which became effective on December 1, 2011, 

provides that “a reference to any kind of written material or 

any other medium includes electronically stored 

information.”122 Rule 101(b)(6) was added as part of the 

Restyling Project,123 one of the goals of which was to clarify 

that while the original Rules of Evidence were written largely 

with hardcopy in mind, the evidentiary concepts established in 

the Rules were and remain equally applicable to ESI. Instead 

of specifying that equation in every single hardcopy-based rule, 

the decision was made to use an all-encompassing definitional 

approach.124

Carving out ESI from 803(16) is inconsistent with the basic 

approach to ESI so recently taken in the Restyling Project. It is 

questionable whether a deviation from a unified approach is 

justified simply to allow old—and often unreliable—hardcopy 

to be admitted in a handful of CERCLA and deportation cases. 

Given the fundamental flaw in the ancient documents 

exception, it is probably not worth retaining it in its present 

form while limiting it to hardcopy. Moreover, there still could 

be a random case in which the only available proof of an old 

matter is ESI that is not admissible under other exceptions. 

There would seem to be no reason to treat that case differently 

from one where the only available proof is hardcopy. 

 

122 FED. R. EVID. 101(b)(6).

123 For a description of the Restyling Project and its goals, see Committee 

Note to amendment to the 2011 amendment to Rule 101, in DANIEL J.

CAPRA, FEDERAL RULES OF EVIDENCE 7 (2014-15 ed. 2014).

124 See CAPRA, FEDERAL RULES OF EVIDENCE, supra note 123, at 10.

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If, however, ESI were to be carved out from the ancient 

documents exception, the Committee Note to such an 

amendment should explain the conflict between the carve-out 

and the general approach to the Evidence Rules in equating 

hardcopy and ESI. That Committee Note might look something 

like this:

Committee Note. The ancient documents 

exception to the rule against hearsay has been 

amended to specify that it is not applicable to 

information that is electronically stored. The 

ancient documents exception remains necessary 

for certain kinds of litigation in which 

information is located only in hardcopy 

documents that have withstood the test of time. 

However, the exception is subject to abuse when 

applied to electronically stored information. The 

need for old electronically stored information 

that does not qualify under any other hearsay 

exception is diminished by the fact that reliable

electronic information is likely to be preserved 

and could be used as proof under a hearsay 

exception that guarantees reliability—e.g., Rule 

803(6), Rule 807. Abuse is possible because 

unreliable electronic information may be 

widespread and would be admissible under the 

exception simply because it has been preserved 

for twenty years. 

The amendment provides an exception to 

the general definition in Rule 101(b)(6), under 

which a reference to any kind of writing includes 

electronically stored information. Nothing in the 

amendment is intended to undermine any other 

use of electronically stored information under 

these Rules.

C. Add a Necessity Requirement

A third option is to apply the ancient documents exception 

to both ESI and hardcopy equally, but to limit the exception to 

situations in which the initial justification still exists—in other 

words, where it is necessary to introduce the old evidence 

because there are no reasonably available alternatives. That 

amendment might look like this:

(16) Statements in Ancient Documents. A 

statement in a document that is at least 20 years 

old if: 

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(A)and whose the document’s authenticity is 

established; and 

(B)the statement is more probative on the 

point for which it is offered than any other 

evidence that the proponent can obtain 

through reasonable efforts.

The language in new subdivision (B) is taken directly from 

the residual exception to the hearsay rule, Rule 807. That 

language was intended to limit the use of the residual hearsay 

exception to cases where it was truly necessary.125 That same 

reasoning should apply to the ancient documents exception: if 

other evidence admissible under other reliability-based 

exceptions could be obtained through reasonable efforts, then 

the ancient documents exception should not be used either for 

hardcopy or ESI. Essentially, the proposal ties the exception to 

its only real (albeit weak) reason for being. 

Adding the “more probative” requirement to Rule 803(16) 

would have a substantial ameliorative effect on the potential 

abuses raised by ESI. As discussed above, in any case in which 

there is old ESI available, there is likely to be reliable ESI that 

could be admitted to prove a point. It is otherwise simply bad 

practice to allow a proponent to admit unreliable ESI just 

because it is old. 

The added advantage of tracking the “more probative” 

language from the residual exception is that there is case law 

that can and should be borrowed from Rule 807 on what 

constitutes “reasonable efforts” to obtain information 

admissible under other exceptions. The case law under Rule 

807 indicates that a proponent must try to find alternative 

evidence, but need not undertake Herculean efforts to do so.126

“[L]imitations upon the financial resources available to the 

parties and the court are rightfully considered.”127 As one court 

put it, whether equally probative evidence is reasonably 

available depends upon “the importance of the evidence, the 

means at the command of the proponent, and the amount in 

controversy.”128 Thus, as applied to ESI and the ancient 

documents exception, old ESI might be admissible if 

 

125 See SALTZBURG, MARTIN & CAPRA, supra note 22, § 807.02[5] (explaining 

that the rationale for the “more probative” requirement “is that the 

residual exception should be reserved for cases of clear necessity”).

126 See the cases cited in SALTZBURG, MARTIN AND CAPRA, supra note 22, §§ 

807.17-807.21.

127 Id. § 807.11.

128 Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1552 (9th Cir. 

1990).

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alternative ESI can only be found by expensive forensic efforts

or could only be read only by obtaining software that is not 

easily available.

One might ask: If you are going to add a necessity 

requirement from Rule 807, then why not add the reliability 

requirement from Rule 807 as well? The answer is that there 

would then be another Rule 807—there need not be two of 

them. The additional necessity-based language would limit the 

exception to its original rationale and it would make it much 

less likely that the exception would become a broad avenue of 

admissibility for questionably reliable ESI because, in most 

cases, there is likely to be reliable ESI that can be admitted 

under other exceptions.

Here is a possible Committee Note explaining the addition 

of a “more probative” requirement to Rule 803(16): 

Committee Note. Rule 803(16) has been 

amended to require a specific showing of 

necessity before hearsay may be admitted under 

the ancient document exception. See Rule 807 

(imposing an identical necessity requirement). 

Unlike the other hearsay exceptions, Rule 

803(16) imposes no requirement that the hearsay 

in a document be reliable. The basic justification 

for the exception is necessity, but the text of the 

existing Rule does not, in fact, require the 

proponent to show that there is no other way to 

prove the point for which the hearsay is offered. 

The absence of a necessity requirement is 

particularly troubling given the development and 

widespread use of electronically stored 

information. Without a necessity requirement, a 

proponent might use the ancient documents 

exception to admit unreliable ESI or hardcopy, 

even though reliable evidence may be readily 

available. 

The language added to the Rule is 

intentionally chosen so that guidance from case 

law under Rule 807 can be used to interpret the 

identical language in Rule 803(16). 

Of course, the necessity-based solution suffers from the 

fundamental flaw from which the ancient documents exception 

has always suffered: the unsupportable equation of 

authenticity and reliability. Essentially, the exception, as 

amended by the necessity language, would say that unreliable 

hearsay can be admitted when it is necessary to prove a point. 

That is logically problematic, but at least the addition of 

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necessity-based language will put the exception back where it 

always was—as a backwater in the hearsay rule. It will limit 

the damage that will occur from what would otherwise be 

wholesale admission of unreliable ESI, and it responds to the 

Advisory Committee’s understandable reluctance to abrogate 

hearsay exceptions where the ground for the amendment is 

that the exception was wrong from the start. 

V. CONCLUSION

The ancient documents exception to the hearsay rule should 

be changed before litigants find out that it is an open door to 

admitting old and unreliable ESI as evidence. Academic purity 

would suggest that the exception should be abrogated because 

it did not make sense in the first place. But a compromise 

approach—specific language limiting the exception to the 

necessity-basis on which it has always been implicitly 

grounded—will serve to prevent overuse of the exception as 

applied to ESI without the jarring effect of totally eliminating a 

traditional exception to the hearsay rule.

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