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

Abstract

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. 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 terabytes of prevalent and easily retrievable electronically stored information (ESI).