Wisconsin Lawyer
Vol. 85, No. 2, February 2012

Do the first Gulf War, the breakup of the Soviet Union, and the release of Nirvana’s Nevermind seem like ancient history to you?

Me, neither.

But they all happened in 1991, and under federal and state evidentiary rules, a document only has to be 20 years old to qualify for admission under the ancient-document rule. This article explores this underused (and perhaps mildly depressing) feature of the rules of evidence.

The Ancient-Document Rule

The Wisconsin and federal rules of evidence contain virtually identical versions of the ancient-document rule. The rule has both a hearsay and an authentication component. The hearsay component simply provides that “statements in a document in existence 20 years or more whose authenticity is established” are not excluded by the hearsay rule.¹ In other words, the contents of an authentic 20-year-old (or older) document cannot be excluded on hearsay grounds.

The authentication component of the rule can be harder to comply with. To be admitted, all documents, ancient or otherwise, must be authenticated by “evidence sufficient to support a finding that the [document] in question is what its proponent claims.”² The rules provide one “illustration” of what kind of evidence will authenticate an “ancient” document, namely “[e]vidence that a document or data compilation, in any form: (a) [i]s in a condition that creates no suspicion concerning its authenticity; (b) [w]as in a place where it, if authentic, would likely be; and (c) [h]as been in existence 20 years or more at the time it is offered.”³

Why There Is an Ancient-Document Rule

At first blush, the ancient-document rule seems a bit “odd” (as the Wisconsin Court of Appeals put it⁴). Documents do not become more accurate and reliable just by sitting in a file cabinet for 20 years. So why make an exception for those documents, and not others? What was the source of the ancient-document rule?

The ancient-document rule was born of necessity. Many disputes involve instruments and other documents – deeds, wills, maps, and so on – created generations earlier. As memories fade and witnesses die, it becomes increasingly difficult, if not impossible, to produce direct evidence of the instrument’s authenticity. There rarely will be someone around to testify about the validity of a deed executed 60 years earlier, for example.⁵

Rather than simply bar admission of such documents, courts looked to circumstantial evidence of authenticity. The main factors considered by courts were the age, condition, and location of the found document. The rule eventually evolved to require that documents be at least 30 years old and be found in an unsuspicious condition in a place where they would be expected to exist.

The ancient-document rule initially consisted only of an authentication requirement. It eventually was recognized that the rule should also contain a hearsay component, given that the purpose of admitting documents into evidence is to prove the truth of the matters asserted therein, such as the location and width of a road on a survey map.⁶

Once the hearsay component was in place, the ancient-document rule could be applied not just to authenticate older instruments but also to admit any document discussing matters that occurred 30 or more years earlier. For instance, when a courthouse tower collapsed, a 60-year-old newspaper article describing a courthouse fire was admissible to show that charring found in the tower was caused by the fire that happened 60 years earlier, and not (as the plaintiff had claimed) because the tower was recently struck by lightning.⁷

The federal rules of evidence codified the ancient-document authentication and hearsay rules in 1972, and the Wisconsin rules followed suit in 1975. Although “necessity” has been the main justification for the ancient-document rule, the codified versions of the hearsay rule do not require the witness to be unavailable. The drafters’ rationale was that even if a witness is available, his or her memory might not be reliable after so much time has passed.

The codification of the ancient-document rule also changed the definition of ancient from 30 years to 20 years. The drafters admitted that “[a]ny time period selected is bound to be arbitrary.”⁸ They further stated that there is “some shift of emphasis from the probable unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time.” In other words, 20 years is enough time to ensure that the document was generated before the present controversy and was not drafted with an eye to the current litigation.

The Hearsay Component

Although the core of the ancient-document rule is the authentication provision (again because the hearsay exception simply provides that “[s]tatements in a document in existence 20 years or more whose authenticity is established” are not subject to the hearsay rule)⁹ there are some important points to be made about the hearsay component.

First, as noted above, there is no requirement that the declarant be unavailable. A statement found in an ancient document may be admitted for its substantive value even if the declarant could make the same statement in court.

Second, it can be argued that the ancient-document rule applies to all statements in a document, not just to statements made by the document’s author. For example, a newspaper article often contains at least two layers of out-of-court statements: a statement from a source to the article’s author (the journalist), and the statements of the journalist in the article. Some courts and commentators maintain that a separate hearsay exception must apply to each layer of hearsay. Others argue that the ancient-document hearsay exception applies to all statements in the document, and that no separate hearsay exception is needed for the second-level hearsay statements. Wisconsin has not addressed this issue directly, but an aside in one case suggests that the courts would adopt the more expansive view of the ancient-document hearsay rule that would apply to all statements in the document.¹⁰

The Seventh Circuit has adopted the more narrow view. “[I]f the [ancient] document contains more than one level of hearsay, an appropriate exception must be found for each level.”¹¹ When considering an old trial transcript, the Seventh Circuit found that the ancient-document rule allowed admission of the transcript as a true account of what the witness said at trial, but a separate exception was needed to admit the witness’s testimony for its truth. The court held that the testimony was admissible as a “declaration against interest.”¹²

One commentator has stated flatly that this view of the ancient-document rule “is incorrect” because the hearsay rule “simply says, ‘statements in a document,’ not ‘statements in a document made on personal knowledge of the document’s creator.’”¹³ In other words, according to this commentator, the plain language of the rule applies to any and all statements in the ancient document, not just statements made by the document’s author.

Also, while the rules require a hearsay exception at every level, at least one court has pointed out that the ancient-document rule itself can be used to satisfy this requirement, by applying it to each level of hearsay.¹⁴ There is no requirement that each level be justified by a different exception. Moreover, allowing admission of all statements in the ancient document comports with the main justifications for the rule: that after 20 years, it is often impossible to find a competent witness to attest to the same facts, and it is unlikely that the statements were made with the present litigation in mind.

As noted above, newspaper articles almost invariably involve at least two out-of-court statements: the statement from the source to the journalist, and the journalist’s statements in the article. Thus, some courts have held that the prohibition of hearsay within hearsay effectively bars all newspaper articles that are not based on the journalist’s first-hand observations, notwithstanding the ancient-document rule.¹⁵ For example, in one case, a plaintiff was not allowed to use the ancient-document exception to introduce several newspaper articles stating that a public health agency purchased the medicine at issue from the defendant.¹⁶ Other courts have admitted older newspaper articles without limitation, citing the ancient-document rule.¹⁷

Wisconsin courts have repeatedly acknowledged that newspaper articles are hearsay, but they have not, to the author’s knowledge, applied the ancient-document rule to newspaper articles. The closest is a court of appeals decision in which the court noted in passing that “[n]ewspaper articles ... are ‘hearsay’ and may not be considered on summary judgment, unless, of course, the articles are submitted by someone in a libel action against the newspaper based on those articles, or, oddly, unless they are at least twenty years old….”¹⁸

Finally, lawyers should keep the “residual” hearsay exception in mind if the statement otherwise might not meet the ancient-document requirements. The Wisconsin and federal rules of evidence provide a safety valve, a residual exception that allows a judge to admit hearsay statements even if they do not fit within one of the codified exceptions. For example, one court admitted newspaper articles under the residual hearsay exception after holding that the ancient-document rule did not apply.¹⁹

Authentication – The Ancient-Document Illustration

All documents must be “authenticated” before they may be admitted into evidence. Federal and state rules provide a general rule for authentication.

“(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”²⁰

The rules then list several examples “by way of illustration only, and not by limitation” of the kind of evidence sufficient to show that the document or other evidence is what it is claimed to be. The following subsection of the rule deals directly with ancient documents:

“(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.”²¹

Each of these elements of ancient-document authentication are discussed in turn below.

Unsuspicious Condition

The condition element refers to some kind of physical mark or alteration on the document that suggests that the document is not what its proponent claims. This may include “erasures, missing parts, misspellings, changes in handwriting, unusual format, anachronistic content, and a freshness of appearance that belies age.”²²

To bar application of the ancient-document rule, the document’s condition, not the contents themselves, must be suspicious. For example, the Seventh Circuit held in one case that the fact that many similar World War II-era documents were created fraudulently did not mean that the document was “suspicious” under the rule. Rather, this fact went to the weight of the document’s evidence once it was admitted.²³

Location, Location, Location

The second authentication factor is that the document “was in a place where it, if authentic, would likely be.” In some cases, the court will simply rely on reasonable explanations for the document’s location, such as the location of a survey map in the files of a real estate broker in one Wisconsin case.²⁴ Other instances might require expert evidence to explain why an authentic document would “likely” be in its found location, such as a historian explaining how certain types of records from Nazi Germany ended up in Soviet archives.²⁵

Because the rule only requires evidence of the document’s likely location, there is no need to show specifically how a particular document wound up in its found location, or that it was in that location for 20-plus years. “[I]t is not necessary to show a chain of custody for ancient documents. [The ancient-document rule] merely requires that the document be found in a place where, if authentic, it would likely be.”²⁶ For instance, in the case discussed above, there was no need to show how the specific record at issue ended up in the Soviet archives.²⁷ Expert testimony describing how such documents generally wound up in the archives sufficed to show that it was likely that the particular document in question would be in the archives.

The location requirement is not met if there is no explanation for how a document ended up in its found location. For example, in one Seventh Circuit case, a memo found in a doctor’s files was not admitted under the ancient-document rule because the doctor’s name was handwritten onto the typed distribution list, and the doctor could not say who sent him the memo or how it came into his files.²⁸Because the document seemed to just randomly appear in the doctor’s files, the document’s proponent could not meet the likely location requirement.

Twenty Years After

The final authentication requirement is that the document “has been in existence 20 years or more at the time it is offered.” Note that the document has to be at least 20 years old when it is offered, not when it is located. Thus, in a protracted dispute, documents may suddenly become eligible under the ancient-document rule. Pegging the age to the time the document is offered also suggests that documents less than 20 years old may be considered on summary judgment if the trial is set for a date that is more than 20 years after the date on which the document came into existence.

If the document otherwise satisfies the authentication requirements, courts have generally used the date on the document to establish the document’s age.²⁹ If the document is undated, the courts may turn to other contents of the document, such as descriptions of events within the document. Failing that, the courts may rely on extrinsic evidence, such as the overall condition of the document or its location with respect to other documents.³⁰

Authentication – Other Methods

Much like how the residual hearsay exception might apply when the ancient-document hearsay exception does not, there are other ways to authenticate an ancient document even if it does not strictly comply with the authentication requirements discussed above.

The ancient-document hearsay rule does not say how an ancient document has to be authenticated, just that it has to be authenticated.³¹ In addition, the authentication rules explicitly call the condition, location, and age method of authentication an “illustration” and “example.”

Accordingly, an ancient document may be authenticated by one of the other methods illustrated in the rules or by any other evidence that the “document in question is what its proponent claims.” For example, if a document was found in an unlikely location, the document might still be authenticated by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”³² Similarly, some federal courts have held that documents produced by an opposing party are implicitly authenticated.³³

Ancient Documents Versus Business Records

The ancient-document exception confers a significant advantage over other hearsay exceptions, most notably the exception for records of regularly conducted activity, more commonly known as the business-records exception.³⁴ Under Wisconsin law, testimony from an employee that he or she found the record in the company files is not enough to satisfy the business-records exception. Instead, the witness must have personal knowledge of how the records were made so that the witness is qualified to testify that they were made “at or near the time [of the event] by, or from information transmitted by, a person with knowledge” and “in the course of a regularly conducted activity.”³⁵

As businesses reshuffle and employees relocate, it might become increasingly difficult to track down a witness who has “personal knowledge of how the records [of the business] were made.” However, this requirement falls away at the 20-year mark, because the record will then qualify as an ancient document.

Ancient Electronic Records

The ancient-document rule was created at a time without emails, PDF versions, scanners, the “cloud,” and so on, at a time when documents were tangible things. Thus, the traditional ancient-document requirements refer to physical attributes of documents – condition and location – that simply do not exist for electronic documents. However, electronic documents are a pervasive part of modern life.

For example, many businesses have gone paperless and digitized their archives. What if an issue arises that requires the admission of corporate minutes and related correspondence that date back 20 years but that now reside only as computer files on one or more servers? Can the documents be printed and then admitted as ancient documents?

The author has been unable to find any case law directly addressing the point. Still, under the spirit and text of the ancient-document rule, it seems that such documents should be admitted.

The same justifications for the ancient-document rule exist whether a 20-year-old document is in its original paper form or has been converted into a computer file. First, necessity: Time still marches on, memories still fade, witnesses still die. Without the ancient-document rule, it may be impossible to introduce relevant evidence. Second, the time requirement still makes it unlikely that the statement was made with the present controversy in mind. Third, residual questions about the document’s authenticity can still be argued to the jury.

Turning to the text of the ancient-document rule, the hearsay component does not specify how the document be authenticated, just that it be authenticated. Also, under Wisconsin law, an electronic copy of a document is as admissible as the original, unless “a genuine question is raised as to the authenticity of the original,” or it is otherwise unfair under the circumstances to admit the document.³⁶

The admissibility of an ancient electronic record thus turns on authentication: Can the proponent produce sufficient evidence that the offered document is an electronic copy of a document that is at least 20 years old?

There is no specific method for authenticating electronic documents. Courts have used the general authentication standard – “evidence sufficient to support a finding that the matter in question is what its proponent claims” – in conjunction with the application of specific illustrations to admit electronic records.³⁷ Some have argued that the ease with which electronic records can be manipulated requires heightened authentication requirements. But, as the courts have noted, forgery is nothing new, and a paper document can be authenticated even though it may be a fake.³⁸ The question is whether there is enough evidence to reasonably conclude that the document is genuine.

One possible (albeit untested) method of authentication is by analogy to components of the traditional authentication method. The “condition” of the document can still be inspected by looking at the printed version of the document for cross-outs, erasure marks, and so on. Finding the electronic-file version of a document on the same server and directory as similar files seems analogous to finding a document in physical archives that contain similar documents. The age of the electronic document can still be established by the contents of the document or by surrounding circumstances. Metadata associated with the file may also provide supporting evidence of the age of the document, where it was saved, and whether it has been altered.

Evidence of the procedure used to convert a document into electronic format, and to then store it, would of course support a finding of authenticity, but such evidence should not be required. After all, under the ancient-document rule, there is no requirement to show a chain of custody, because finding the witnesses necessary to testify to the chain of custody is often impossible for a document that is 20 or more years old. Requiring an “electronic chain of custody” goes against the purpose of the ancient-document rule.

Other possible methods of authenticating an ancient electronic record may be by comparison to otherwise authenticated documents³⁹ or by examination of the “distinctive characteristics” of the document itself.⁴⁰

Conclusion

It may seem like only yesterday that Terminator 2: Judgment Day hit the theaters, but as far the rules of evidence are concerned, it is ancient history by now. Documents created as recently as 1991 qualify as ancient documents and are excepted from the rule against hearsay, provided they can be authenticated. Authentication does not require a witness to testify about how the document was created or where the document has been since its creation. Instead, authentication only requires evidence that the document was found in a likely location and in an unsuspicious condition, and that it is at least 20 years old. The jury is still out on how the ancient-document rule applies in a world of electronic records, but the same problem that justifies the ancient-document rule – the effect of time on the memory and availability of witnesses – applies whether a document is paper or electronic. For this reason, the ancient-document rule should remain a powerful evidentiary tool for the foreseeable future.

Endnotes

¹ Wis. Stat. § 908.03(16) (“Statements in ancient documents.”) Actually, there is a slight grammatical difference in the federal version of the rule: “Statements in a document in existence twenty years or more the authenticity of which is established.” Fed. R. Evid. 803(16).

² Wis. Stat. § 909.01; Fed. R. Evid. 901(a).

³ Wis. Stat. § 909.015(8); Fed. R. Evid. 901(b)(8).

⁴ Aon Risk Servs. Inc. v. Liebenstein, 2006 WI App 4, ¶ 23 n.6, 289 Wis. 2d 127, 710 N.W.2d 175, abrogated on other grounds by Burbank Grease Servs. LLC v. Sokolowski, 2006 WI 103, 294 Wis. 2d 274, 717 N.W.2d 781.

⁵ Wilson v. Snow, 228 U.S. 217, 219-21 (1913).

⁶ Barrows v. Kenosha County, 8 Wis. 2d 58, 64-65, 98 N.W.2d 461 (1959).

⁷ Dallas County v. Commercial Union Assur. Co., 286 F.2d 388, 396 (5th Cir. 1961).

⁸ Fed. R. Evid. 901(b)(8) comment.

⁹ Wis. Stat. § 908.03(16). The federal rules contain a substantially similar exception. Fed. R. Evid. 803(16).

¹⁰ Aon Risk Servs., 2006 WI App 4, ¶ 23 n.6, 289 Wis. 2d 127.

¹¹ United States v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998).

¹² Id.

¹³ Id.

¹⁴ Langbord v. U.S. Dep’t of Treasury, CIV.A. 06-5315, 2011 WL 2623315 (E.D. Pa. July 5, 2011).

¹⁵ Hicks v. Charles Pfizer & Co., 466 F. Supp. 2d 799, 806 (E.D. Tex. 2005).

¹⁶ Id.

¹⁷ Langbord, CIV. A. 06-5315, 2011 WL 2623315 (collecting cases).

¹⁸ Aon Risk Servs., 2006 WI App 4, ¶ 23 n.6, 289 Wis. 2d 127.

¹⁹ Hicks, 466 F. Supp. 2d at 806.

²⁰ Fed. R. Evid. 901.

²¹ Id.

²² 31 Fed. Prac.& Proc. Evid. § 7113 (1st ed.).

²³ United States v. Kairys, 782 F.2d 1374, 1379 (7th Cir. 1986).

²⁴ Johnson v. Gulseth, No. 00-0354, 2000 WL 1728465, ¶ 11 (Wis. Ct. App. Nov. 22, 2000) (unpublished).

²⁵ United States v. Firishchak, 468 F.3d 1015, 1021 (7th Cir. 2006).

²⁶ Kairys, 782 F.2d at 1379.

²⁷ Firishchak, 468 F.3d at 1021.

²⁸ Chemetall GMBH v. ZR Energy Inc., 320 F.3d 714, 722 (7th Cir. 2003).

²⁹ See, e.g., Roberts v. Thompson, No. 78-231, 1979 WL 30390 (Wis. Ct. App. Apr. 18, 1979) (unpublished).

³⁰ Firishchak,468 F.3d at 1022.

³¹ “Statements in a document in existence 20 years or more whose authenticity is established” are not excluded by the hearsay rule. Wis. Stat. § 908.03(16).

³² Fed. R. Evid. 901(b)(4); Walden v. Pittsburgh-Corning Corp., No. 42284-7-I, 1999 WL 225055 (Wash. Ct. App. Apr. 19, 1999) (unpublished).

³³ See., e.g., Vulcan Golf LLC v. Google Inc., 726 F. Supp. 2d 911, 915 (N.D. Ill. 2010) (citing Thanongsinh v. Board of Educ., 462 F.3d 762 (7th Cir. 2006)).

³⁴ Wis. Stat. § 908.03(6).

³⁵ Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 20, 324 Wis. 2d 180, 781 N.W.2d 503 (quoting Wis. Stat. § 908.03(6)).

³⁶ “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. No duplicate is inadmissible solely because it is in electronic format.” Wis. Stat. § 910.03.

³⁷ See, e.g., Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 541-62 (D. Md. 2007).

³⁸ Id.

³⁹ Wis. Stat. § 909.015(3).

⁴⁰ Wis. Stat. § 909.015(4).

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