For Washington civil litigators, a familiar—and often contentious—evidentiary rule has been amended. Effective Sept. 1, 2026, Washington Evidence Rule 904 was amended to remove the rule’s so-called “catch-all provision.” This provision previously provided a potential avenue for admission of documents relating to a material fact that had appropriate “circumstantial guaranties of trustworthiness.” See ER 904(a)(6).
What is Washington Evidence Rule 904?
In civil cases, ER 904 provides that certain documents “shall be deemed admissible unless objection is made” in order to expedite the admission of documentary evidence. These documents include photographs, X-rays, health care provider records, bills for property damage, and weather or traffic signal reports. Until September 2026, the rule included a “catch-all” provision under ER 904(a)(6), which applied to “other documents relating to a material fact and having equivalent circumstantial guaranties of trustworthiness.” The Washington Supreme Court previously interpreted ER 904’s catch-all provision broadly, holding that it not only allowed the admission of documentary evidence but created an “expectation of admission” absent timely objection. Miller v. Arctic Alaska Fisheries Corp., 133 Wash. 2d 250, 260, 944 P.2d 1005, 1010 (1997).
Proposal to Amend Evidence Rule 904
In early 2026, the Washington Superior Court Judges’ Association (SCJA) proposed amending ER 904. The SCJA noted that use of the catch-all provision to admit documents had “substantially expanded” since the rule’s adoption in 1992, with trial lawyers routinely including “hundreds and sometimes thousands of documents” in their ER 904 notices, most offered under the catch-all provision.
The SCJA proposed eliminating the rule’s catch-all provision and replacing it with additional enumerated categories of documentary evidence. These categories tracked ER 803(a) hearsay exceptions; i.e., records “not excluded by the hearsay rule, even though the declarant is available as a witness.” The proposal excluded business records and public records from the rule, which require case-by-case admissibility determinations.
Comments were solicited in response to the SCJA’s proposal.
The Washington State Attorney General’s Office (AGO) expressed support for the amendment’s goals but recommended a revision: the inclusion of uncertified court records as an additional category of presumably admissible documents. The AGO explained that it represents the Department of Children, Youth, and Families in thousands of dependency and termination of parental rights cases annually, where court records are necessary exhibits routinely admitted through ER 904. Without including uncertified court records as a category of presumably admissible documents, the AGO argued, the amendment would actually increase costs and administrative burdens in those proceedings.
King County Superior Court Judge Kristin Ballinger also submitted a comment supporting the SCJA proposal. Judge Ballinger focused on the rule’s effect on authenticity, noting that ER 904 addressed both admissibility and authenticity concerns. Judge Ballinger also suggested that parties wishing to establish authenticity alone could do so through a request for admission under CR 36(a).
Official Changes to Evidence Rule 904
After incorporating comments, Washington courts adopted several changes to ER 904, effective Sept. 1, 2026. The new version of the rule replaces the catch-all provision with the following enumerated categories under ER 904(a)(6) through (12):
(6) A record of vital statistics as described by ER 803(a)(9);
(7) A record of a religious organization as described by ER 803(a)(11);
(8) A certificate as described by ER 803(a)(12);
(9) A family record as described by ER 803(a)(13);
(10) A record of a document affecting an interest in property as described by ER 803(a)(14);
(11) A market report or other document as described by ER 803(a)(17);
(12) A judgment as described by ER 803(a)(22) or (23), or an uncertified court record that is: (a) a court order, (b) a petition for civil protection order, or (c) a petition filed under ch. 13.34 RCW.
With this rule change being so recent, there is not yet a body of case law as to how courts have interpreted this new version of Rule 904.
Maile Johnston. Maile (admission pending) is a member of Ashurst Perkins Coie’s Complex Litigation practice. She earned her J.D. from the University of Michigan Law School, where she participated in the school’s Juvenile Justice and Pediatric Advocacy Clinics. Before joining Ashurst Perkins Coie, Maile served as a judicial law clerk for Justice Dario Borghesan of the Alaska Supreme Court. She was a summer associate at the firm in 2023 and 2024.
Tommy Tobin. Tommy is a counsel at Ashurst Perkins Coie. His practice focuses on complex litigation and regulatory compliance, with an emphasis on the food, consumer goods, and cannabis industries. He often represents well-known consumer brands and other clients in false advertising and labeling matters and provides regulatory counseling regarding product labeling. He clerked for Judge Max O. Cogburn Jr. in the Western District of North Carolina. He holds degrees from Stanford, Harvard Law School, and Harvard Kennedy School.
