The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998. The Court has determined 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.

The Court is aware that in certain cases--such as cases involving latent diseases and environmental damage--parties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going 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 limitation of the ancient documents exception is not intended to raise an inference that 20 year-old documents are, as a class, unreliable, or that they should somehow not qualify for admissibility under Rule 807. Finally, many old documents can be admitted for the non-hearsay purpose of proving notice, or as party-opponent statements.

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. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, if the content of the document is itself altered after the cut-off date, then the hearsay exception will not apply to statements that were added in the alteration.

The rule has been amended to clarify that if the proponent has established the stated requirements of the exception -- regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification -- then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. It is appropriate to impose this burden on opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

The rule has been amended to clarify that if the proponent has established the stated requirements of the exception -- set forth in Rule 803(6) -- then the burden is on the opponent to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. The amendment maintains consistency with the amendment to the trustworthiness clause of Rule 803(6).

The rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception -- prepared by a public office and setting out information as specified in the rule -- then the burden is on the opponent to show that the source of information or other circumstances indicate a lack of trustworthiness. Public records have justifiably carried a presumption of reliability. The amendment maintains consistency with the amendment to the trustworthiness clause of Rule 803(6).

Rule 803(10) has been amended to incorporate, with minor variations, a “‘notice-and-demand” procedure that was approved in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). This amendment is not intended to alter any otherwise applicable disclosure requirements.

To conform to Federal Rule of Evidence 803(6)(A), as restyled, the language “first hand knowledge” in Rule 803(6)(b) has been changed to “knowledge” in amended Rule 803(6)(A). The new language is not intended to change the requirement that the record be made by--or from information transmitted by--someone with personal or first hand knowledge.

To conform to Federal Rules of Evidence 803(24) and 807, Rule 803(24) has been deleted and transferred to Rule 807.

Rule 803(25) has not been amended to conform to the federal rules.

Otherwise, the language of Rule 803 has been amended to conform to the federal restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent in the restyling to change any result in any ruling on evidence admissibility.

For provisions governing former testimony in criminal actions or proceedings, see Rule 804(b)(1) and Rule 19.3(c), Rules of Criminal Procedure.