From old to ‘ancient’ at 20

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If you have ever stood before a jury and unfurled an antique-looking scroll, you may have cited the “ancient documents” rule as you moved its admission into evidence.

And if you are looking for chance to make that grand gesture, you’d better act fast. A proposal to get rid of the “ancient documents” rule, Fed. R. Evid. 803(16), is being circulated by the Judicial Conference Advisory Committee on Evidence Rules.

An exception to the hearsay rule, the “ancient documents” rule says that if a document is more than 20 years old and “appears authentic,” it is admissible for the truth of its contents, according to the advisory committee.

The absurdity of the rule must have been apparent when a committee member read it aloud.

The committee acknowledged that the rationale of the rule “has always been questionable.” After all, a document does not become reliable just because it is old, and it does not magically become reliable enough to be admitted on the day it turns 20, their report said.

Ironically, the rarely invoked rule is likely to become more popular in the coming years, the committee predicted, with electronic storage of digital documents.

“Many forms of ESI 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” if Rule 803(16) stays on the books, according to the committee report.

The need for an “ancient documents” exception is questionable as applied to ESI, the committee said, “for the very reason that there may well be a great deal of reliable electronic data available to prove any dispute of fact,” the group said

The only real “use” for the exception is to admit unreliable hearsay, as has happened in several reported cases the committee said.

The advisory committee is accepting comments on the proposal to drop the “ancient rules’ exception until Feb. 16, 2016.