Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It before People Find out about It

TABLE OF CONTENTS Introduction I. The Ancient Documents Rule--Authenticity Rule and Hearsay Exception II. Does the Rationale for the Ancient Documents Exception Apply to ESI? III. Arguments Against an Amendment to Rule 803(16) A. How Prevalent and Retrievable Is Old ESI? B. Does the Ancient Documents Exception Even Apply to ESI? C. No Existing Problem to Address? D. Can the Problem of Unreliable Old ESI Be Handled By Use of Rule 403? E. Ancient Hardcopy Documents Might Still Be Necessary in Some Litigation IV. Drafting Alternatives A. Deletion B. Limit the Exception to Hardcopy Documents C. Add a Necessity Requirement V. Conclusion 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 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 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. …