Failure to Authenticate Report As An "Ancient Document" Under FRE 803(16) and FRE 901(b)(8)

Sixth Circuit reviews the admissibility of an EPA report under the ancient documents hearsay exception under FRE 803(16); questions were raised about the authentication of the report under FRE 901(b)(8) which requires that the document is "in a condition that creates no suspicion about its authenticity," is "in a place where, if authentic, it would likely be" and when offered is no less than 20 years old; ultimately the report was excluded, in Kalamazoo River Study Group, 228 F.3d 648 (6th Cir. Oct. 5, 2000) (No. 99-1197)

As an exception to the general rule against hearsay, "ancient" records may be admitted where the requirements of FRE 803(16) are met and the records are sufficiently authenticated. Rule 803(16) presently provides: "A statement in a document that is at least 20 years old and whose authenticity is established." While there are not many cases considering the ancient documents hearsay exception, one Sixth Circuit cases highlights the requirements of admitting evidence under Rule 803(16).

Trial Proceedings: Does An EPA Report Qualify As An Ancient Document?

Plaintiff Kalamazoo River Study Group ("Study Group") sought contribution from defendant Eaton Corp. ("Eaton") for a study the group was sponsoring. The Study involved possible remediation of polychlorinated biphenyl (PCB) contamination in a portion of the Kalamazoo River (which was also designated a Superfund site). Study Group members consisted of industries (primarily paper processors) located along the contaminated part of the river. While no determination had yet been made as to which of the industries would be liable for the clean-up, the Study Group sought a federal court order for the defendant Eaton to pay a proportion of the remediation study costs. Contribution from Eaton in the study was sought because it was successor to one of the companies suspected of having a role in the PCB contamination.

Defendant Eaton opposed any contribution order, contending that the Study Group had failed to satisfy its burden of showing that Eaton, or it's predecessor, had released the PCBs which ended up contaminating the river. As part of its effort to make this showing, the Study Group unsuccessfully sought to introduce at the trial a document allegedly from the EPA contending that that the Eaton facilities had purchased large quantities of a substance containing PCBs. The trial court excluded an EPA report "indicating that Eaton's Battle Creek facility purchased from Monsanto large quantities of a substance known as Pydraul A-200, which contained PCBs." An Michigan Department of Natural Resources ("MDNR") employee "testified that the document came from the files of the Lansing office of MDNR, and that it had been in those files for over twenty years. Rohrer personally reviewed the document in the fall of 1977 through the spring of 1978 in connection with a study MDNR was conducting. Rohrer testified that the document was not prepared by MDNR, but that "[he] believe[d] it was prepared by the United States Environmental Protection Agency." The court refused to admit the document, explaining that its reliability was seriously in question. Kalamazoo River Study Group, 228 F.3d at 661. The proceeding ended with the district court finding that the Study Group had satisfied in showing that a number of industries had reached the "threshold of significance" for polluting the river and so would have to help pay some of the remediation study; however the court also concluded that Eaton did not meet the standard and so would not have to contribute to the study, granting summary judgment on the issue of liability to the defendant. Kalamazoo River Study Group, 228 F.3d at 661. On appeal, the Study Group contended that the trial judge erred by excluding the EPA document about defendant Eaton's involvement with PCB-containing substances, which should have been admitted as an "ancient document" under FRE 803(16).

Sixth Circuit Analysis: Endorsing Third Circuit Approach

The Sixth Circuit noted that it had not previously addressed "the proper application of the ancient documents exception to the hearsay rule." In considering prior case law, the circuit ended up endorsing the Third Circuit approach:

While the ancient documents provision has not been a subject of frequent discussion in reported opinions, those cases which do address the provision establish that the point of a Rule 901(b)(8) inquiry is to determine whether the documents in question are, in fact, what they appear to be. “Although the rule requires that the document be free of suspicion, that suspicion does not go to the content of the document but rather to whether the document is what it purports to be....” Questions as to the documents' content and completeness bear upon the weight to be accorded the evidence and do not affect the threshold question of authenticity. The determination that a set of documents are, indeed, prima facie authentic in no way precludes counsel from challenging the content of the documents or from arguing that missing documents subject the contents to a different interpretation.
Kalamazoo River Study Group, 228 F.3d at 661 (quoting Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1375-76 (3d Cir. 1991) (quoting United States v. Kairys, 782 F.2d 1374, 1379 (7th Cir.), cert. denied, 476 U.S. 1153 (1986)) (citations omitted)).

Application

The Third Circuit highlighted two requirements to admit a document under the ancient document hearsay exception. First, prior to employing FRE 803(16), the court must authenticate the evidence pursuant to Rule 901(a) standards (e.g., that the proponent produce “evidence sufficient to support a finding that the (document) in question is what its proponent claims.”). Second, once the ancient document is authenticated, the fact finder determines the weight, if any, to be given the statements in the ancient document. The Sixth Circuit agreed with the trial court that the document had not been sufficiently authenticated:

Considering all the circumstances, we find no error in the district court's ruling. Most important, [MDNR employee] Rohrer was unable to state with certainty that the document was even prepared by the EPA; he could only state that it was his belief that the document "was a page out of an EPA report if I recall correctly." Moreover, Rohrer's testimony does not establish why the document was in the MDNR files. We therefore affirm the district court's exclusion of this document from consideration.
Kalamazoo River Study Group, 228 F.3d at 661 (record citation omitted).

Conclusion

The Kalamazoo River Study Group case highlights the requirement of authentication and the deference normally afforded to the district court on these issues. For a more recent application of the ancient documents hearsay exception by the same circuit, see Sixth Circuit Considers Application Of The FRE 803(16) Ancient Documents Exception.

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