Monday, January 17, 2022
Court of Appeals of Washington Finds 1981 Newspaper Article Admissible Against Mobil as an Ancient Document
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered.
Rule 901(b)(8), however, only covers authentication. So what about hearsay?
In Wright v. 3M Company, 2021 WL 5879009 (Wash.App. 2021),
Wright sued ExxonMobil and others for his father's wrongful death from mesothelioma as a result of asbestos exposure in oil refineries while working for an independent contractor, Northwestern Industrial Maintenance. The other companies settled, but Mobil proceeded to trial.
After the jury found for Wright, Mobil appealed. One ground for appeal was Mobil's claim that the court improperly
allowed Wright to introduce a photocopy of a newspaper article entitled “Lung Cases Show Up at Mobil.” The article was included in “OSHA Oversight Hearings on Proposed Rules on Hazards Identification” Hearings before the subcommittee on health and safety of the committee on education and labor for the House of Representatives in 1981. The article contains references to information about lung disease in confidential medical reports compiled by Mobil and statements by an unnamed medical expert. The court admitted the article, stating it qualified under ER 901(b)(8) as authentic for the purposes of the ancient document exception to hearsay. The court did not undertake an examination of the contents for embedded hearsay. Nor did it need to since under ER 803(a)(16), any hearsay within the ancient document was admissible. Any arguments about the content would merely go to the weight to be given to the evidence by the jury.
The court was referencing Washington Rule of Evidence 803(a)(16), which provides an exception to the rule against hearsay for "[s]tatements in a document in existence 20 years or more whose authenticity is established." In other words, if a document is properly authenticated as an ancient document, its contents qualify for admission as an exception to the rule against hearsay.*
*Federal Rule of Evidence 803(16) now provides an exception to the rule against hearsay for "[a] statement in a document that was prepared before January 1, 1998, and whose authenticity is established."