Preview of the 2017 amendments to the Federal Rules of Evidence

By Kenneth J. Treece
BridgeTower Media Newswires
 
DETROIT — In 2015, significant changes to the Federal Rules of Civil Procedure went into effect. And in the New Year, we are already looking to the end of 2017.

That’s when amendments to the Federal Rules of Evidence (“FRE”) will limit the admissibility of electronically stored information, or ESI, under the “ancient documents” exception to the hearsay rule. At the same time, it will make authentication of ESI easier and, hopefully, more cost-effective.

Procedural rules governing discovery are continually under review due to the proliferation of ESI. Significant procedural rules changes have been, and will continue to be, instituted because ESI is the primary form of evidence today.

In 2015, amendments to the Federal Rules of Civil Procedure went into effect. Those amendments were largely driven by the need to reduce the time and expense caused by the discovery of electronic data.
Now, there are pending amendments to the FRE that, barring unforeseen difficulty, will become effective Dec. 1, 2017. The amendments are to Rules 803 and 902. Like their 2015 procedural counterparts, these amendments address areas of concern created by the proliferation of electronic data.

Amendment to FRE 803

The “ancient documents” hearsay exception set forth in Rule 803(16) is amended to specify that statements prepared prior to Jan. 1, 1998, and whose authenticity has been established, will not be excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.

The Judicial Conference Advisory Committee on Evidence Rules (the “Committee”) explained that the ancient documents exception “should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information [ESI].

“Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.”

When the rule was first adopted, electronic data did not exist. If invoked at all, the rule would unlikely have applied to an overwhelming number of hardcopy documents. Now, however, if left as is with a rolling 20-year time frame, every year the rule would sweep in vast quantities of electronic data. A deluge of self-serving statements could then be offered by a party immune from a hearsay objection.

Note that the amendment does not distinguish between electronic data and hardcopy documents. In that regard, the Committee Notes state that “[g]oing forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception.

“Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability — which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events.”

The Committee Notes also address how to determine when a document is “prepared” for purposes of the amended rule: “Under the amendment, a document is ‘prepared’ when the statement proffered was recorded in that document. For example, if a hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy of that document, the date of preparation is 1995 even though the scan was made long after that — the subsequent scan does not alter the document.”

If a document was created prior to the cutoff date, but contains alterations that were made after the cutoff date, the altered information would not qualify for the hearsay exception.

Amendment to FRE 902

Rule 902, which concerns self-authenticating documents, is amended by the addition of paragraphs (13) and (14), which provide that some items of evidence are self-authenticating, requiring no extrinsic evidence of authenticity to be admitted.

They include records “generated by an electronic or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12),” and data “copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).”

The goal of these amendments is to alleviate the necessity of bringing a live witness to trial to certify the authenticity of electronic documents. If the proponent provides reasonable written notice of its intent to offer the electronic document and makes the record and certification of authenticity available for inspection, the burden shifts to the opponent to challenge the authentication and/or admissibility of the document.

The certification must provide information sufficient to authenticate the document if the certifying person was testifying at trial. But note that the certification does not establish a “business records” hearsay exception under Rule 803(6).

Although similar in content and application, paragraphs (13) and (14) apply to distinct situations. Paragraph (13) would apply to records generated by a computer concerning its internal processes or systems. For example, paragraph (13) would apply to authenticate a Windows operating system registry printout to prove that a USB storage device was connected to a computer.

Paragraph (14) would cover user created files stored on a computer or other electronic storage medium. For example, it would be used to authenticate a copy of an email using the email’s hash value, i.e., its unique “electronic fingerprint.” If the hash value of the copy matches the hash value of the original, the copy can be authenticated via certification.

Electronic data continues to drive changes to the rules of federal practice. Its sheer volume demands that court rules address the unique problems that arise from the digital age. Hopefully, these amendments will have a beneficial, or at least benign, impact on the burden and expense of litigation.

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Kenneth J. Treece is a senior attorney at Miller Canfield’s Kalamazoo office. He is a member of the firm’s eDiscovery and Legal Tech Services Team.