Peter Nicolas, Saving an Old Friend from Extinction: A Proposal to Amend Rather Than to Abrogate the Ancient Documents Hearsay Exception, 63 UCLA L. Rev. Discourse 172 (2015), https://digitalcommons.law.uw.edu/faculty-articles/284
UCLA Law Review Discourse
Federal Rules of Evidence
This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed "ancient" and could thus be swept into evidence via the exception.
In Part I of this Essay, I provide an overview of the proposed amendment. In Part II, I contend that although the proposal is a well-intentioned effort to deal with a potential problem, abrogating rather than amending the hearsay exception is unduly strong medicine. I argue that in proposing abrogation, the drafters of the proposed amendment have overstated the risks associated with Rule 803(16) and understated its utility, and that such a move would put the Federal Rules of Evidence out of sync with those of all but one of the fifty states.
Finally, in Part 111, I propose a set of amendments that would remedy what the drafters of the proposed amendment identified as Rule 803(16)'s deficiencies, while at the same time allowing its continued use in those rare cases where it may serve as the only gateway to admitting evidence necessary to prove ancient wrongs deserving of vindication.