If it's old, it's reliable. That was the thinking behind a decades-old rule in the federal courts that provided an exception to the hearsay rule—lawyers could introduce documents that might otherwise be inadmissible if those records were at least 20 years old and appeared authentic.

But the judiciary is considering getting rid of the rarely used “ancient documents” exception. Now that documents can be stored electronically for long periods of time, a committee of federal judges that reviews the evidence rules is worried courts will face a flood of requests to admit documents under the exception.

Evidence experts have mixed reactions to the proposal. Some agreed with the evidence committee that the ancient documents exception was based on shaky logic and the time was ripe to scrap the rule. Others thought the judiciary was prematurely attempting to fix a problem that didn't exist and would end an occasionally useful rule.

“It's a somewhat interesting development, partly because they are aiming to solve a problem that hasn't actually yet hit us,” said Jennifer Mnookin, dean of the University of California at Los Angeles School of Law who teaches evidence, in an email. “I don't think there is really a giant wave of unreliable (and yet believable) electronic evidence being introduced.”

Judges typically reject out-of-court statements as hearsay, but there are exceptions for certain types of statements and documents, such as public records, an “excited utterance” at the moment of a “startling” event, and medical diagnoses.

The ancient documents exception is used in rare circumstances, said Stephen Saltzburg, a professor at George Washington University Law School who serves as an American Bar Association liaison to the federal judiciary's evidence rules advisory committee. In one famous case decided in 1961 by the U.S. Court of Appeals for the Fifth Circuit about the collapse of a courthouse clock tower, the exception was invoked in a dispute over the use of a 50-year-old newspaper article about a 1901 fire at the courthouse.

The federal judiciary announced the proposal to get rid of the ancient documents exception on Aug. 14 and is accepting public comments through February. U.S. District Judge William Sessions III of Vermont, chairman of the advisory committee on evidence rules, said in a report that the foundation of the exception “has always been questionable.”

“A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” Sessions wrote. “The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Liesa Richter, a professor at the University of Oklahoma College of Law who teaches evidence, applauded the proposal.

“Age is no guarantee of reliability,” Richter said. “Now that we have this flood of electronically stored information that never goes away—it doesn't disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”

Richter said the judiciary can be reluctant to change rules for fear of disrupting court proceedings. In this instance, however, she said that getting rid of the ancient documents exception before lawyers started using it en masse made sense.

“Nobody is using [the ancient documents exception] now. But if lawyers find it—and I believe in the intelligence of trial lawyers, they will—and start using it, and judges say this is admissible, for the committee to wait in this case has the potential for true disruption,” Richter said.

Sessions (left) said in a phone interview that the committee started thinking about the ancient documents exception as it reviewed other rules dealing with electronically stored information. Judges have not yet experienced an influx of requests to admit hearsay documents under the exception, he said, but the committee wanted to act before there was a problem.

“If all of a sudden it starts to be used regularly, it takes a number of years for changes to the rules to be made,” Sessions said. He said courts could still accept hearsay evidence that was reliable and necessary to a case under a different rule, Rule 807, known as the “residual exception.”

Saltzburg, who supported the proposal to end the ancient documents exception, said the evidence rules advisory committee considered altering the rule rather than scrapping it wholesale, but they concluded that other options, such as limiting the exception to hard-copy documents, were unworkable.

“The committee concluded that this particular exception wasn't really necessary. If something was reliable and really needed, it would be admissible under Rule 807, the residual hearsay exception,” Saltzburg said. “Leaving the door open to everything that's ever stored electronically, that was too big a door for people to feel comfortable.”

Mnookin said relying on the residual hearsay exception risked being “under-inclusive” of documents and gave judges more discretion, so it might not be applied evenly across the courts. Still, she said, “some scholars and even judges have suggested that the whole hearsay patchwork is just too complicated for its own good, and that a reliability-focused 'standard' would be a better substitute to our current crazy-quilt of rules. So perhaps this will be a step in that direction.”