Report on Proposed Amendments to Federal Rules of Evidence

SUMMARY

The Federal Courts Committee submitted comments in response to proposed amendments to the Federal Rules of Evidence. First, the Committee opposed the proposed abrogation of the exception to the rule against hearsay for “ancient documents” (Rule 803(16)). While the Committee appreciates the Advisory Committee’s desire to be proactive to preempt any possible problem that might arise in the future with electronically stored information that survives more than twenty years, it does not believe there is a concrete indication of problems to date with Rule 803(16). The Committee also points out that ancient documents still must be authenticated and that Rule 403 allows a district judge to exclude evidence if the potential for unfair prejudice or misleading the jury substantially outweighs the probative value of the evidence. The Committee also points out certain unintended consequences that could occur if 803(16) is abrogated. Second, the Committee supports the Advisory Committee’s proposal to add two additional categories of records as self-authenticating under Rule 902: (i) a record generated by an electronic process or system that produces an accurate result, as shown by an appropriate certification, and (ii) data copied from an electronic device, storage medium, or electronic file, if authenticated by a process of digital identification, as demonstrated by an appropriate certification.