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Home , Admissible evidence, Motion (legal), Summary judgment

TECHNIQUES AND TACTICS

JUNE 2019

IN THIS ISSUE Winning or losing summary mayOctober turn on the 2014 admissibility of the on which the parties rely. This article is a reminder that evidence supporting, or opposing, a must be, or must forecast, evidence that will actually be admissible at trial. Don’t foul up a righteous summary judgment motion by supporting it with evidence that is in the wrong form!

Summary Judgment Evidence

ABOUT THE AUTHOR Jim King is a partner with the firm of Porter, Wright, Morris & Arthur LLP in Columbus, Ohio. Jim’s practice centers on commercial and business litigation in throughout Ohio and the Midwest. He can be reached at [email protected].

ABOUT THE COMMITTEE The Trial Techniques and Tactics Committee promotes the development of trial skills and assists in the application of those skills to substantive areas of trial practice.

Learn more about the Committee at www.iadclaw.org. To contribute a newsletter article, contact:

Bryant J. Spann Vice Chair of Newsletter Thomas Combs & Spann, PLLC [email protected]

The International Association of Counsel serves a distinguished, invitation-only membership of corporate and insurance defense . The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members.

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Civil trial lawyers are all familiar with that there is no genuine dispute of material summary judgment. If a case is not fact and the movant is entitled to judgment otherwise dismissed or settled, then it will as a matter of law. The may consider be resolved either in trial or, most only the materials cited by the parties to commonly, by summary judgment. But just support or oppose the motion, although it because most civil actions are not tried does has the to consider other not mean that trial lawyers can ignore the materials in the record. See Fed. R. Civ. P. Rules of Evidence. Rule 56 of the Federal 56(c)(3). But whatever materials the parties Rules of states that a motion cite, that material must constitute for summary judgment must be supported admissible evidence. “An affidavit or or opposed by “citing to particular parts of declaration used to support or oppose a materials in the record,” to include motion must . . . set out facts that would be “depositions, documents, electronically admissible in evidence.” Fed. R. Civ. P. stored information, affidavits or 56(c)(4). A party may object that material declarations, stipulations * * *, admissions, cited in support of or in opposition to the interrogatory answers, or other materials.” motion “cannot be presented in a form that Fed. R. Civ. P. 56(c)(1)(A). Whatever would be admissible in evidence.” Fed. R. “particular parts” of the record are cited, the Civ.P. 56(c)(2). content or substance of the evidence must either be admissible or capable of being While Rule 56 only refers to admissible presented in a form that would be evidence in the context of affidavits or admissible in evidence in order to be declarations, any materials offered in considered by the court. In short, the Rules support of or in opposition to a summary of Evidence need to be understood not just judgment motion that would be inadmissible by trial lawyers, but by the litigators and at trial, assuming the presence of all writers who, these days, are not in trial testifying in the courtroom, may as much as they would like. be disregarded. This is implicit from the summary judgment standard that a court This article provides a brief overview of the must determine whether there are any admissibility requirements of Rule 56 of the genuine disputes of material fact. 13 James Federal Rules of Civil Procedure, what Wm. Moore et al., Moore’s Federal Practice evidence can and cannot be considered, and ¶ 56.91[1] (3d ed. 2013). A genuine dispute the obligations that the rule imposes in is one that will go to the trier of fact, often supporting and opposing a summary the . Without admissible evidence judgment motion. regarding that material fact, no dispute of fact will exist. Basic Requirements of Rule 56 As noted, Rule 56(c)(2) also makes clear that Rule 56 allows a party to a civil to a party may object to material cited to move for summary judgment on a claim, support or dispute a fact on the grounds of , or cross-claim on the ground admissibility. And Rule 56(d)(1) provides

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- 3 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER June 2019 that a motion that is not properly supported, evidence – that is, the affidavit or even if no response is filed, may still be declaration – will not preclude the court denied. Summary judgment by default is from considering it. As the Ninth Circuit generally not available. But, if a party fails to explained, “[a]t the summary judgment object to the admissibility of evidence used stage, we do not focus on the admissibility of to support or oppose a motion for summary the evidence’s form. We instead focus on judgment, the court may consider the fact as the admissibility of its contents.” Fraser v. undisputed in deciding the motion. Fed. R. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Civ. P. 56(e)(2). Depending on the and the local rules, a party can raise the objection in the motion papers, by a separate motion or paper with the testimony is commonly used as court, or by waiting to object at a on summary judgment evidence. Rule the motion. The court is permitted, 56(c)(1)(A) makes clear that both oral however, to give a party an additional depositions and depositions on written opportunity to support an assertion of fact questions can be used, as well as deposition or an objection to an assertion of fact. Fed. testimony from another case. Rule 32(a)(8), R. Civ. P. 56(e)(1). for example, provides that a deposition taken and, if required, filed, “in any federal- Although the law is clear that only admissible or state-court action may be used in a later evidence may be considered on summary action involving the same subject matter judgment, that does not mean that the between the same parties, or their material must be presented in a form that representatives or successors in interest, to would be admissible at trial. Affidavits and the same extent as if taken in the later declarations are the classic examples. action.” If deposition testimony is presented Affidavits and declarations are since in support or in opposition to a motion for they are out-of-court statements. And it is summary judgment, only testimony that generally understood that hearsay cannot be would be admissible at trial may be considered on summary judgment. “When introduced. Sworn testimony outside of a an affidavit contains an out-of-court deposition, such as at a hearing, can be used statement offered to prove the truth of the so long as it is otherwise admissible. Arceo statement that is inadmissible hearsay, the v. City of Junction City, 182 F. Supp.2d 1062, statement may not be used to support or 1080-81 (D. Kan. 2002) (prior grand jury defeat a motion for summary judgment.” testimony may be considered). Courts have Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. held that it is not necessary to submit the 2008). However, if the proponent of the entire transcripts; excerpts are permitted. evidence can demonstrate that it will be See Alexander v. Caresource, 576 F.3d 551, possible to introduce the content or 560 (6th Cir. 2009). substance of the material at trial – for instance, the affiant will testify as a live – the court may take into account the material in deciding the summary judgment motion. The “form” of the w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected]

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Affidavits, Declarations, and Exhibits ensure that the witness has the requisite personal knowledge and is someone through Rule 56(c)(4) provides that a formal affidavit whom the exhibit could be admitted into or a written unsworn declaration that evidence. The witness also must be able to complies with 28 U.S.C. § 1746 can be used lay the proper for admissibility. to support or oppose a motion for summary A copy of an e-mail of which the witness was judgment. Whether an affidavit or a not the author or recipient, for instance, may declaration is used, it must be sworn or not be admissible because the person was subscribed to under penalty of perjury, be not part of the communication and, thus, based on personal knowledge, present facts lacks personal knowledge, or because the e- that are admissible in evidence, and mail is just reciting hearsay. But what if the demonstrate that the affiant or declarant is e-mail might be admissible if submitted in competent to testify about the matters another manner at trial? Again, as noted stated. Conclusory or self-serving affidavits above, courts have held that a hearsay that fail to set out each of these elements statement can be considered if there is a may be ignored. showing, or the possibility, that the statement would be submitted in admissible Typically, the second and the fourth form at trial. If no such showing is made, elements – personal knowledge and the however, Rule 56(c)(2) states that a party witness’s competency – are relatively easy may object to evidence used in support or to satisfy. It should be noted, however, that opposition to a summary judgment motion a witness’s statements based on information on the ground that it “cannot be presented and belief are not admissible. Sehll Rocky in a form that would be admissible in Mountain Prod., LLC v. Ultra Res., Inc., 415 evidence.” F.3d 1158, 1169 n.6 (10th Cir. 2005). Again, the witness must have personal knowledge Expert opinions may be presented by and be competent to testify, just like in affidavit or declaration. Such affidavits or court. Guessing is not allowed in moving for declarations must satisfy the general or opposing summary judgment. The requirements for summary judgment witness’s statements must include sufficient affidavits or declarations under Rule factual information to establish that the 56(c)(4). If the expert’s report is submitted, conclusion is actually based on personal the report should be verified by an affidavit knowledge and that the witness is or declaration or through deposition competent to testify, even if the affidavit or testimony. The expert’s testimony also must declaration recites that it is based on be admissible and satisfy the requirements personal knowledge. of Fed. R. Evid. 702 and 703.

Admissibility of the evidence presented in Another important consideration arises if the affidavit or declaration can prove more the affiant or declarant has previously difficult. If exhibits (including electronically testified at a deposition. Courts have held stored information) are attached to the that witnesses, including experts, may not affidavit or declaration and the documents contradict or undermine their deposition are not self-authenticating, counsel must testimony with a later affidavit. See w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected]

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Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. City of Bolingbrook, 522 F.3d 758, 761 (7th 795, 806 (1999). In such a circumstance, a Cir. 2008). Admissions are generally litigant cannot rely upon an affidavit or considered admissible and can be used to declaration in support of or in opposition to support or oppose a summary judgment a summary judgment motion if the witness motion. These would include admissions testified previously to the contrary. An under Rule 36, in , in court affidavit or declaration that contains proceedings or hearings, or in briefs filed statements inconsistent with the witness’s with the court. earlier testimony is subject to a motion to strike.

Other Parts of the Record Finally, courts may consider facts subject to judicial notice in ruling on a motion for Rule 56(c)(1)(A) specifies that other parts in summary judgment. Rule 201 of the Federal the record may be considered on summary Rules of Evidence allows courts to take judgment. Those parts would include judicial notice of adjudicative facts. To be stipulations, admissions, interrogatory judicially noticed, Rule 201(b) provides that answers, and other responses. In an adjudicative fact must either be (1) order to be considered, the materials must generally known within the trial court’s be placed into the record either by affidavit, territorial jurisdiction, or (2) capable of declaration, or motion. If the materials are accurate and ready determination by resort already in the record as part of previous to sources whose accuracy cannot be proceedings, nothing more will be reasonably questioned. Types of facts that necessary. If not, then so long as the can be judicially noticed include but are not materials were obtained or exchanged in the limited to current events, calendars and case, they would not need to be time, geography, and weather. One authenticated by affidavit, at least in theory, category of fact that often is the subject of a if the nature of the document and its request for judicial notice is prior judicial authenticity were clear on its face. To proceedings. To what extent can a party safeguard against any challenge, however, it point to the record from an earlier or parallel may be prudent to have someone familiar case to support or oppose a summary with the materials, including counsel, judgment motion? If a matter in another authenticate them as true and accurate case was adjudicated such that the doctrine either by affidavit or declaration. Indeed, of issue or claim preclusion would apply, some local court rules require an then the court can take notice of the accompanying affidavit or declaration if adjudication in applying the doctrine. But a discovery materials are presented. court cannot take judicial notice of the factual findings from another proceeding, The materials still must satisfy admissibility otherwise the doctrine of collateral estoppel standards. Interrogatory answers that are would be superfluous. See, e.g., Taylor v. not based on personal knowledge, for Charter Med. Corp., 162 F.3d 827, 829-30 (5th example, cannot be used to support or Cir. 1998). Facts adjudicated in a prior case oppose summary judgment. See Hardrick v. do not satisfy either test of indisputability w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected]

- 6 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER June 2019 contained in Rule 201(b). Thus, although a that certain allegations were made in that court can take judicial notice that a proceeding, the court cannot take judicial or motion was filed or that a judgment was notice of the truth of the allegations or entered in another judicial proceeding, or findings.

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Past Committee Newsletters

Visit the Committee’s newsletter archive online at www.iadclaw.org to read other articles published by the Committee. Prior articles include:

MAY 2019 APRIL 2018 Turning Trends into Tactics Engaging Your Jury Through Creative Use of W. M. Bains Fleming, III Demonstrative Exhibits

Carl Aveni DECEMBER 2018

Up Against the Clock-Time Limits in Civil Emails as Business Records Jim King Kirstin L. Abel

MARCH 2018 NOVEMBER 2018 Starting with Why? Challenging the ’s Economic Expert Bains Fleming Erik W. Legg and Stephanie M. Rippee

FEBRUARY 2018 OCTOBER 2018 Questions Outside the Scope in a Rule It's Official, Admissibility of Statements 30(b)(6) Deposition Contained in Public Records Jim King Brian A. O’Connell

JANUARY 2018 SEPTEMBER 2018 The Mistrust of Science in the Age of To Intervene, or Not to Intervene, Alternative Facts That is the Question Kirstin Abel Matthew S. Brown

NOVEMBER 2017 AUGUST 2018 I’m Thinking of a Number Impeaching Someone Who’s Not There Brian A. O'Connell Jim King

MAY 2018

Defending Against Economic Claims Kurt B. Gerstner

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