Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It

Daniel J. Capra
17 Yale J.L. & Tech. 1

The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written.The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of these electronic media are potentially admissible for their truth at a trial if (and simply because) they were made more than twenty years ago. This is due to Federal Rule of Evidence 803(16), the so-called “ancient documents” exception to the hearsay rule. Under the ancient documents exception, documents that would normally be excluded as hearsay are admissible if the document is at least twenty years old, and if the party offering the document can show that the document is “genuine,” or authentic. As electronic communications continue to age, all of the factual assertions in terabytes of easily retrievable data will be potentially admissible for their truth simply because they are old.This Article argues that the ancient document exception needs to be changed because its rationale, while never very convincing in the first place, is simply invalid when applied to prevalent and retrievable electronically stored information (ESI). Part I of the Article discusses the rationales for the ancient documents rule and that exception’s relationship with the rules of authenticity on which it is based. Part II addresses whether the rationales for the ancient document exception, such as they are, can be sensibly applied to ESI. Part III raises and answers some arguments against abrogating or restricting the ancient documents exception as applied to ESI or even more broadly. Part IV considers drafting alternatives for changing the ancient documents exception in light of its pending risk of use as a loophole for admitting unreliable ESI as evidence.