Ancient effect of technology

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.

Now, the abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

From the ABA Journal, which 20 years from now will automatically be admissible as evidence, absent a rule change.