Time Marches On, Memories Fade, and Witnesses Die: How Lawyers Can Use the Underutilized Ancient Document Hearsay Exception

In many mass tort cases, and particularly in cases involving exposure to a substance with a long latency period, defendants and plaintiffs must rely on documents created decades ago. That’s challenging, of course, because many of these documents are hearsay and often there’s no one around with personal knowledge of their authenticity or contents. But there is hope for parties trying to admit these documents: they may be able to call on the ancient document hearsay exception.
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And as it turns out, “ancient” for the purposes of the Federal Rules of Evidence isn’t that old. Remember when Titanic swept into theaters, we met Dolly the sheep, and the first Harry Potter was published in the U.K.? The year was 1997 – and according to the recently amended Federal Rules of Evidence, those events are now “ancient” history.

Ancient Document Exception

The “Ancient Document” exception to the hearsay rule is, itself, ancient – the rule existed at common law, and the Federal Rules of Evidence have long had an exception for documents that were at least 20 years old. The Rule was initially adopted because (1) a party may not be able to find witnesses with personal knowledge of facts in documents older than 20 years, making the document the only available evidence to prove those facts to a jury; and (2) there’s good reason to believe the documents are trustworthy because they were not made with the present litigation in mind.

But in 2015 the Committee on Rules of Practice and Procedure of the United States Judicial Conference proposed abandoning the Ancient Document rule due to the concern that it would become a loophole for parties to admit potentially limitless amounts of unreliable electronically stored information as this type of information became increasingly available. Ultimately, the Committee instead decided to narrow the Ancient Document rule to documents created before a specific date – January 1, 1998 – rather than a rolling 20-year period. Although the Committee recognized that the 1998 cutoff was somewhat arbitrary, it ultimately concluded that a cutoff date was necessary to prevent the Rule from becoming a “receptacle for unreliable hearsay.”

Requirements for Utilizing the Ancient Document Exception

The language of the amended Federal Rule of Evidence 803(16), which took effect December 1, 2017, is simple: “A statement in a document that was prepared before January 1, 1998, and whose authenticity is established” is not excluded by the rule against hearsay, regardless of whether the declarant is available to testify.

Thus, parties seeking to admit ancient documents must establish two things: (1) that the document is authentic; and (2) that the document was “prepared” before January 1, 1998.

  1. Authentication

The Ancient Document Rule still requires that parties demonstrate that a document is what the proponent claims it is—that is, in the language of Rule 803(16), the party seeking to admit the document must demonstrate that its “authenticity is established.” Federal Rule 901(8) provides examples of what the proponent may show to establish the authenticity of an “ancient” document: that the document (1) is in a condition that creates no suspicion about its authenticity; (2) was in a place where, if authentic, it would likely be; and (3) is at least 20 years old when offered.[1]

The first requirement concerns whether there is a physical alteration or mark that suggests that the document is not what its proponent claims it is. Courts often find the second requirement satisfied when the proponent provides a reasonable explanation for the document’s location.  For the third requirement, courts generally rely on the date included on the document. If the document is undated, courts may use extrinsic evidence based on the content of the document.

An example can illustrate how the authentication requirements work. One of the most cited opinions about the Ancient Document rule affirmed the admission of an eighty-year-old newspaper to show that the collapse of a clock tower was caused in part by a fire that had taken place over eighty years earlier and not by a recent bolt of lightning like the plaintiff claimed.[2] The 5th Circuit reasoned that an eighty-year-old newspaper was authentic by reason of its age alone. The court further found it trustworthy because it seemed “impossible that the testimony of any witness would have been as accurate and as reliable as the statements of facts in the contemporary newspaper article.”[3]

  1. Prepared Before January 1, 1998

Second, the proponent must demonstrate when a document was “prepared.” The Advisory Committee has stated that a document is “prepared” or created when the information is recorded. So, for example, the Ancient Document rule could apply to a scanned copy of a hardcopy document prepared in 1995, even though the scan may have been done well after 1995. On the other hand, if the content of that 1995 document is changed or altered in 2000, then the Ancient Document rule may apply to the original text of the 1995 document, but not to the changes made in 2000.

Back to the Present

Besides the new January 1, 1998, cutoff, what else should practitioners keep in mind when trying to use the Ancient Document Rule to admit documents? First, it’s important to be aware of any potential “hearsay within hearsay” problems. Fed. R. Evid. 805 provides that hearsay within hearsay – documents that are hearsay themselves and contain statements that are also hearsay – may be admitted when each part of the combined statements conforms with an exception to the rule against hearsay. Newspapers, for example, commonly present the “hearsay within hearsay” problem: both the article itself, and the quoted statements of the journalist’s sources, are hearsay and thus must fall under one of the enumerated hearsay exceptions.

Courts disagree about whether the Ancient Document rule allows courts to admit documents with multiple layers of hearsay based on the rule alone. Most jurisdictions hold that it does not. But at least one court has held that the Ancient Document rule itself can be used to satisfy multiple layers of hearsay by applying the rule to each level.[4]

Second, remember that this is a change to the federal rule. Many states have not yet changed their own ancient document rules to have a similar date cutoff. At this point only 3 out of the 49 states with ancient document rules have a similar 1998 cutoff date. The rest still follow a rolling 20-year, and in some cases 30-year, period. So in a case where old documents play an important role, parties may want to double check the state rule before deciding whether the federal or state rule will be more helpful when admitting documents.

Product liability lawyers may have to be creative in proving events that occurred long ago. Although the Ancient Document rule is often underutilized, it can be an effective way to get critical evidence before a jury.

[1] Fed. R. Evid. 901(8).

[2] Dallas Cty. v. Commercial Union Assurance Co., Ltd, 286 F.2d 388, 396–97 (5th Cir. 1961).

[3] Id. at 396.

[4] Langbord v. U.S. Dep’t of Treasury, 2011 WL 2623315 (E.D. Tex. 2005).

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