On December 1st, the Federal Rules of Evidence got a much needed update. That’s when three amendments went into effect, modifying the ancient documents exception to the hearsay rule and expanding the list of self-authenticating documents to make the introduction of ESI easier.
Welcome to the digital age, FRE. We’ve been waiting for you.
Rule 803 of the Federal Rules of Evidence enumerates 23 exceptions to the rule against hearsay: excited utterances, business records, learned treatises, and the like. That includes so-called “ancient documents,” allowed under Rule 803(16).
What constitutes an ancient document? On November 30th, an ancient document was anything document that was at least 20 years old and whose authenticity was established. As of December 1st, an ancient document is now one “prepared before January 1, 1998.” The 20 year language has been tossed.
The change was made to prevent the admissibility of enormous sums of potentially unreliable ESI. Documents that are 20+ years old today were include those created in 1997 and earlier. That year falls right in the heart of the broad adoption of personal computing, when just about half of U.S. adults used computers in their home, school, or work, when AOL was spamming our snail-mailboxes with CD-ROMs, when Hotmail was introducing the first free email accounts, when early adopters of the World Wide Web were moving into their first Geocities “neighborhoods”—we could go on. That is, a time of massive growth in electronic documents. Under the unamended ancient documents exception, every new year, indeed, every new day, would mark a significant growth in the amount of ESI covered, as more and more electronic documents hit their 20-year mark.
Further, according to the Committee Note, the change to the ancient documents rule is needed “due to the risk that [the unamended rule] will be used be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI).” That’s because “no showing of reliability needs to be made to qualify under the exception.”
The Committee Note also points out that there are several alternatives for the use of ESI under “reliability-based” hearsay exceptions:
Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability—which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events.
Arguably the most important changes to the FRE are the amendments to Rule 902, which covers self-authenticating evidence—evidence which requires “no extrinsic evidence of authenticity in order to be admitted,” such as commercial paper and public records.
The amendments add two new categories of evidence to that list, “certified records generated by an electronic process or system” and “certified data copied from an electronic device, storage medium, or file.”
Under the newly added Rule 902(13), “a record generated by an electronic process or system that produces an accurate result” is considered self-authenticating, so long as the process or system’s accuracy is “shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).”
These amendments allow for the authentication of ESI without having to rely on the testimony of an authenticating witness, a change that should reduce the “expense and inconvenience.” As the Rules Committee notes:
It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented.
With 902(13), authenticity can now be established through a certification that provides information that would be sufficient to authenticate the document if that information was presented by a witness at trial.
The expansion of the self-authenticating documents rule to cover ESI does not limit an opponent's ability to object to admissibility on other grounds. In fact, the Committee Note offers two illustrations of just that:
For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the webpage was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable—the authentication establishes only that the output came from the computer.
In addition, the new Rule 902(14) treats as self-authenticating “data copied from an electronic device, storage medium, or file”. As under paragraph (13), this data must be certified by a qualified person, providing information that would be sufficient to authenticate the data were it presented by an authenticating witness at trial.
What’s that look like? Hash values. A hash value is a unique, alphanumeric sequence that identifies data based on its contents—essentially, the fingerprint of a file. If two documents have the same hash value, they are identical. If the hash values differ, they are not. (Hash values are what allow Logikcull to automatically identify duplicate documents, for example.)
Thus, the Committee Note envisions self-authentication based on the certification of a qualified person that “she checked the hash value of the proffered item and it was identical to the original,” though other certification processes are permissible as well.
Finally, both paragraphs (13) and (14) require proponents to meet the notice requirements of 902(11). That rule requires proponents to “give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.”
These new amendments are another example of how electronic information is reshaping the practice of law. They also mark a worthwhile improvement in how electronic evidence is treated in court and should, hopefully, reduce some of the procedural burdens associated with ESI.
These changes alone, however, will not be enough to handle the ever growing amount of electronic evidence, as data growth accelerates and “everything is discoverable.” Thankfully, there’s technology for that.