‘Ancient' Data (And Documents): Prepare For Federal Changes To A Long-Standing Hearsay Exception

Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from electronic sources (902(14)), are slated to become effective in 2017. These proposals are intended to address potential evidentiary issues arising out of the long-term storage of electronic evidence and unnecessarily cumbersome processes for authentication of electronic evidence.

This post discusses the proposed changes to the hearsay exception for ancient documents. The proposal is interesting because it addresses a fear that has yet to materialize – namely, that electronically stored information older than 20 years will be admissible for the truth of its content under current FRE 803(16).