ADVISORY COMMITTEE ON EVIDENCE RULES Durham, NC October 24, 2014 TABLE OF CONTENTS AGENDA ...................................................................................................................................... 5 TAB 1 OPENING BUSINESS A. ACTION ITEM: Approve Minutes of April 2014 Meeting of the Evidence Rules Committee ............................................................ 19 B. Draft Minutes of May 2014 Meeting of the Standing Committee .... 29 TAB 2 PROPOSED AMENDMENTS ADOPTED BY THE SUPREME COURT A. Rule 801(d)(1)(B)................................................................................... 53 B. Rule 803(6) ............................................................................................. 59 C. Rule 803(7) ............................................................................................. 65 D. Rule 803(8) ............................................................................................. 69 TAB 3 PROPOSED AMENDMENT TO RULE 803(16) Reporter’s Memorandum Regarding Hearsay Exception for Ancient Documents and its Applicability to ESI (October 1, 2014) ............................ 75 TAB 4 PROPOSED EHEARSAY/RECENT PERCEPTION EXCEPTION A. Reporter’s Memorandum Regarding Hearsay Exception for Electronic Communications of Recent Perception (October 1, 2014) ................................................................................. 107 B. Jeffrey Bellin, eHearsay, 98 Minn. L. Rev. 7 (Nov. 2013) ................ 129 C. Jeffrey Bellin, The Case for eHearsay ................................................ 169 TAB 5 PROPOSED AMENDMENTS TO PROVIDE SPECIFIC GROUNDS FOR AUTHENTICATING CERTAIN ELECTRONIC EVIDENCE Reporter’s Memorandum Regarding Possible Amendments to Rules 901 and 902 to Cover Electronic Evidence (October 1, 2014) ........... 191 October 24, 2014 Page 3 of 330 Table of Contents – Page 2 TAB 6 PROPOSED AMENDMENTS ALLOWING FOR AUTHENTICATION BY CERTIFICATE OF CERTAIN ELECTRONIC EVIDENCE Reporter’s Memorandum Regarding Possible Amendments to Rule 902 for Authenticating Machine-Generated Data and Electronic Information Through Hash Value (October 1, 2014) ................................... 209 TAB 7 REPORT ON CRAWFORD V. WASHINGTON Reporter’s Memorandum Regarding Federal Case Law Development After Crawford v. Washington (October 1, 2014) .......................................... 225 October 24, 2014 Page 4 of 330 ADVISORY COMMITTEE ON EVIDENCE RULES AGENDA FOR COMMITTEE MEETING Durham, North Carolina October 24, 2014 I. Opening Business Opening business includes: ! Approval of the minutes of the Spring, 2014 meeting; ! A report on the June, 2014 meeting of the Standing Committee; ! A welcome to new members, Judge John Marten and Daniel P. Collins, Esq.; ! A tribute to former Chair Judge Sidney Fitzwater; and ! The Reporter’s discussion of the rulemaking process and timelines for rulemaking, as orientation for new members. II. Proposed Amendments to Rule 801(d)(1)(B) and Rules 803(6)-(8) The proposed amendments to Rule 801(d)(1)(B) and to Rules 803(6), (7), and (8) were approved by the Standing Committee, the Judicial Conference, and the Supreme Court, and are currently before Congress. Barring any unforeseen developments, these amendments will become effective on December 1, 2014. The agenda book sets forth the rules and notes as they were approved by the Judicial Conference. III. Possible Amendment to Rule 803(16) The agenda book contains a memo on consideration of a possible amendment to Rule 803(16), the hearsay exception for ancient documents. The question addressed is whether the exception needs to be altered or abrogated in light of the fact that electronically stored information is widespread, does not degrade, and can be fairly easily stored for 20 years. 1 October 24, 2014 Page 5 of 330 IV. Possible Addition of Hearsay Exceptions for Recent Perceptions The agenda book contains a memo on consideration of a possible amendment that would add two new hearsay exceptions for statements of recent perception. The proposal was made by Professor Jeffrey Bellin at the Electronic Evidence Symposium. The proposal is a modification of the exception that was adopted by the original Advisory Committee but rejected by Congress. The primary goal of the proposal is to lift the hearsay bar from electronic communications such as texts and tweets, but only where the declarant is either unavailable or testifying. Please note that Professor Bellin’s support for his proposal is found in two law review articles — one in Minnesota Law Review and the other to be published in Fordham Law Review, in response to comments made at the Symposium. Both these articles are attached to the Reporter’s memorandum and provide important background information and context for the Reporter’s analysis. V. Possible Amendment to Provide Specific Grounds for Authenticating Certain Electronic Evidence The agenda book contains a memo evaluating drafts of rules that would provide specific guidelines for authenticating emails, texts, and website information. These rules were prepared for discussion purposes by Greg Joseph and presented by Greg at the Electronic Evidence Symposium. VI. Possible Amendments for Certifying Authenticity of Certain Electronic Evidence The agenda book contains a memo on consideration of two possible amendments to the authenticity rules as related to certain electronic evidence. Both these proposals were presented by John Haried at the Electronic Evidence Symposium. The first proposal is a rule that would permit a certification of authenticity of machine-generated evidence, similar to that already allowed for business records under Rule 902(11). The second proposal is to permit a certification to authenticate an electronic device, media, or file by its “hash value” or some other reliable method. VII. Crawford Outline The agenda book contains the Reporter’s updated outline on cases applying the Supreme Court’s Confrontation Clause jurisprudence. 2 October 24, 2014 Page 6 of 330 ADVISORY COMMITTEE ON EVIDENCE RULES Chair, Advisory Committee Honorable William K. Sessions III on Evidence Rules United States District Court Federal Building 11 Elmwood Avenue, 5th Floor Burlington, VT 05401 Reporter, Advisory Committee Professor Daniel J. Capra on Evidence Rules Fordham University School of Law 140 West 62nd Street New York, NY 10023 Members, Advisory Committee Honorable Brent R. Appel on Evidence Rules Iowa Supreme Court Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, IA 50319 Daniel P. Collins, Esq. Munger Tolles & Olson LLP 355 South Grand Ave., 35th Floor Los Angeles, CA 90071 Honorable Stuart M. Goldberg Principal Associate Deputy Attorney General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. – Room 4208 Washington, DC 20530 A.J. Kramer, Esq. Federal Public Defender Indiana Plaza 625 Indiana Avenue, N.W. – Suite 550 Washington, DC 20004 Honorable Debra Ann Livingston United States Court of Appeals Thurgood Marshall United States Courthouse 40 Centre Street, Room 2303 New York, NY 10007-1501 Effective: October 1, 2014 Advisory Committee on Evidence Rules Page 1 Revised: October 1, 2014 October 24, 2014 Page 7 of 330 Members, Advisory Committee Honorable John Thomas Marten on Evidence Rules (cont’d) United States District Court United States Courthouse 401 North Market Street, Room 232 Wichita, KS 67202-2000 Paul Shechtman, Esq. Zuckerman Spaeder LLP 1185 Avenue of the Americas, 31st Floor New York, NY 10036 Honorable John A. Woodcock, Jr. United States District Court Margaret Chase Smith Federal Building 202 Harlow Street, 3rd Floor Bangor, ME 04401-4901 Consultant, Advisory Committee on Professor Kenneth S. Broun Evidence Rules University of North Carolina School of Law CB #3380, Van Hecke-Wettach Hall Chapel Hill, NC 27599 Liaison Members, Advisory Committee Honorable Paul S. Diamond (Civil) on Evidence Rules United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 6613 Philadelphia, PA 19106 Honorable Richard C. Wesley (Standing) United States Court of Appeals Livingston County Government Center Six Court Street Geneseo, NY 14454-1043 Secretary, Standing Committee Jonathan C. Rose and Rules Committee Officer Secretary, Committee on Rules of Practice & Procedure and Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1820 Fax 202-502-1755 [email protected] Effective: October 1, 2014 Advisory Committee on Evidence Rules Page 2 Revised: October 1, 2014 October 24, 2014 Page 8 of 330 Chief Counsel Andrea L. Kuperman Chief Counsel to the Rules Committees 11535 Bob Casey U.S. Courthouse 515 Rusk Ave. Houston, TX 77002-2600 Phone 713-250-5980 Fax 713-250-5213 [email protected] Effective: October 1, 2014 Advisory Committee on Evidence Rules Page 3 Revised: October 1, 2014 October 24, 2014 Page 9 of 330 LIAISON MEMBERS Liaison for the Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Liaison for the Advisory Committee Judge Adalberto Jordan (Bankruptcy) on Appellate Rules Liaison for the Advisory Committee Roy T. Englert, Jr., Esq. (Standing) on Bankruptcy Rules Liaison for the Advisory Committee Judge Arthur I. Harris (Bankruptcy) on Civil Rules Liaison for the Advisory Committee Judge Neil M. Gorsuch (Standing) on Civil Rules Liaison for the Advisory Committee Judge Amy J. St. Eve (Standing) on Criminal Rules Liaison for the Advisory Committee (Bankruptcy)