Technology erases need for ‘ancient document’ rule

August 14, 2015

The hearsay exception for oldy, moldy documents may soon be history.

A longstanding yet rarely invoked federal rule of evidence allowed the admission of an “ancient document” if it was more than 20 years old and appeared to be authentic. However, in an age when decades-old information is easily accessible electronically, a review committee has concluded the exception could be abused.

The Judicial Conference Advisory Committee on Evidence Rules is proposing Rule 803(16) be abolished. In a memorandum from committee chair William K. Sessions III, the exception is described as being “less justifiable and more subject to abuse.”

The committee anticipated since electronically stored information can be retained for well over 20 years, the exception will be used much more frequently. This could, in turn, increase the likelihood of abuse because unreliable information could be readily accessible and, under the exception, be admissible simply because it had been preserved electronically for 20 years.

Moreover, the committee determined dated information that is reliable would not need an ancient documents exception to be admitted.

The proposal is one of a handful of amendments being suggested by the Judicial Conference Advisory Committees on Bankruptcy and Evidence Rules. Additional amendments are also being proposed for the following:

•    Bankruptcy Rule 1001 (revising to track the language of Civil Rule 1);
•    Bankruptcy Rule 1006 (prohibits courts from refusing to accept bankruptcy petitions or summarily dismiss cases for failure to make initial installment payments at the time of filing);
•     Evidence Rule 902 (allows certain electronic evidence to be authenticated by certification of a qualified person, in lieu of that individual’s testimony)
The preliminary draft of the proposed amendments can be found here.

Public comments are being taken through Feb. 16, 2016. For more information or to submit a comment, click here.



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