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

Yale Journal of Law and Technology Volume 17 Issue 1 Yale Journal of Law and Technology Article 1 2015 Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It Daniel J. Capra Fordham Law School Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Daniel J. Capra, Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It, 17 Yale J.L. & Tech (2015). Available at: https://digitalcommons.law.yale.edu/yjolt/vol17/iss1/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Capra: Electronically Stored Information and the Ancient Documents Excep 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 (2015) ABSTRACT 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 … Reed Professor of Law at Fordham Law School and Reporter to the Judicial Conference Advisory Committee on Evidence Rules. Thanks to Reyhan Watson and Amanda Weingarten for their excellent research assistance. Published by Yale Law School Legal Scholarship Repository, 2015 1 Yale Journal of Law and Technology, Vol. 17 [2015], Iss. 1, Art. 1 2 THE YALE JOURNAL OF LAW & TECHNOLOGY Vol. 17 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. TABLE OF CONTENTS Introduction .................................................................................. 2 I. The Ancient Documents Rule—Authenticity Rule and Hearsay Exception ................................................................ 6 II. Does the Rationale for the Ancient Documents Exception Apply to ESI? ..................................................... 14 III. Arguments Against an Amendment to Rule 803(16) ........ 19 A. How Prevalent and Retrievable Is Old ESI? ............ 20 B. Does the Ancient Documents Exception Even Apply to ESI? ............................................................. 25 C. No Existing Problem to Address? ............................. 30 D. Can the Problem of Unreliable Old ESI Be Handled By Use of Rule 403? ................................... 31 E. Ancient Hardcopy Documents Might Still Be Necessary in Some Litigation ................................... 33 IV. Drafting Alternatives .......................................................... 34 A. Deletion ...................................................................... 34 B. Limit the Exception to Hardcopy Documents ........... 37 C. Add a Necessity Requirement ................................... 38 V. Conclusion ............................................................................ 41 INTRODUCTION The first website on the Internet was posted in 1991.1 While there is not much factual content on the very early websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. To take one example: the first easily retrievable web page of the National Enquirer tabloid containing assertive content is dated January 20, 1998 and can 1 Daven Hiskey, The First Website Ever Made, TODAY I FOUND OUT, May 24, 2010, http://www.todayifoundout.com/index.php/2010/05/the-first-websiteever-made (last visited Nov. 4, 2014, 7:06 pm). https://digitalcommons.law.yale.edu/yjolt/vol17/iss1/1 2 Capra: Electronically Stored Information and the Ancient Documents Excep 2015 ESI and the Ancient Documents Exception 3 be found on the Internet Archive’s “Wayback Machine.”2 On that webpage, the Enquirer asserts that Roseanne Barr and her baby were “nearly killed by [her] hubby” and that officers had to draw guns to save her life. The Enquirer webpage from January 30, 1998 asserts facts about the “Clinton Crisis”— including an assertion impliedly attributed to Hillary Clinton that she “shared Monica with Bill.”3 Similarly outrageous assertions can easily be found in electronic text communications, which began in 1992,4 and emails, which were used as early as 1965.5 All of these 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, a document that would normally be excluded as hearsay is admi (...truncated)