Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CHRISTIAN BOURIEZ, et al, ) ) Plaintiffs, ) ) vs. ) Civil Action No. 02-2104 ) ) Judge Arthur J. Schwab/ ) Magistrate Judge Sensenich CARNEGIE MELLON UNIVERSITY, ) ) Defendant. ) ) MEMORANDUM ORDER AMENDING MEMORANDUM ORDER WHICH WAS DATED JULY 27, 2005 (DOCKET # 95) Defendant filed objections to the Memorandum Order dated July 27, 2005. (Doc. #99). Oral arguments were heard on August 18, 2005. After oral argument, this Amended Order is entered, finding that portions of exhibits 11 and 41 are admissible. Plaintiffs filed a Motion to Strike Filings in Opposition to Plaintiffs’ Motion for Summary Judgment and a Brief in Support of the Motion on May 27, 2005. (Doc. # 83 and 84). Defendant filed a Motion to Strike Plaintiffs’ Motion to Strike Filings in Opposition to Plaintiffs’ Motion for Summary Judgment in response and a brief on June 9, 2005. (Doc. # 85 and 86). Plaintiffs replied on July 1, 2005. (Doc #91). The Court entered a Memorandum Order on July 27, 2005 which granted in part and denied in part Plaintiffs’ Motion to Strike. (Doc. # 97). Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 2 of 31 Objections were filed by Defendant, and Plaintiffs replied. (Docs. #99, 101). The Court added the issues presented in the objections to oral argument on the Motion for Summary Judgment, which was held on August 18, 2005. (See Doc. # 102). For clarity and ease of review, the following is a replica of the original Memorandum Order issued on July 27, 2005, except for two minor adjustments reflecting the admissibility in part of exhibit 11 and supplemental exhibit 41 based upon an additional showing by Defendant in its Objections which overcome Plaintiffs’ hearsay objections. Additionally, this memorandum will specifically discuss Defendant’s objections. Defendant directed the Court’s attention to an error in striking supplemental exhibit number 41 in part, due to the fact that portions of that document contain statements made by the Plaintiff, which qualify as a party opponent admission. See FED.R.EVID. 801(d)(2)(A). Second, one sentence in exhibit 11 was argued to be a direction which was submitted not for the truth of the matter asserted, but for the fact that authorization was given. Therefore, the sentence in exhibit 11 which authorizes Marc Portnoff to proceed is admissible non-hearsay and the portions of exhibit 41 which were authored by Plaintiff are admissible. Defendant also argue that exhibit 44 is admissible as a statement by an agent of a party opponent. Plaintiffs counter that expert witnesses can not be agents, and that Defendant 2 Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 3 of 31 failed to establish that Saglio was an agent of Plaintiffs. Defendant did not counter Plaintiffs’ argument. Plaintiffs’ arguments are well taken, and therefore, exhibit 44 will not be admitted. Otherwise, this Amended Memorandum Order is identical to the original Order issued July 27, 2005.1 I. Background Plaintiffs’ Motion to Strike challenges the admissibility of twenty-nine documents contained in Defendant’s Appendix in support of its Brief in Opposition to Plaintiffs’ Motion for Summary Judgment,2 all substantive references to the report of Dr. Kingston contained in Defendant’s brief, and Defendant’s use of general lack of knowledge denials in its Responsive Concise Statement of Material Facts.3 Plaintiffs’ primary objection to Defendant’s filings was based upon Defendant’s failure to provide an affidavit or deposition testimony from the document’s author to verify the authenticity of the documents. Plaintiffs’ second objection challenges hearsay 1 Some typographical corrections have been made and a section of the original Memorandum Order that dealt with the fact that the expert report of Dr. Kingston was not included in the appendix, could not be located by the court, has been removed. Defendant has identified the location of the report, and therefore, the prior discussion is moot. 2 (Doc. #82) Exhibit numbers 6, 8, 11, 12, 15, 17, 19, 20, 23-31, 39, 41, 44, 56-61, 63, 66, and 68. 3 (Doc. # 81). 3 Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 4 of 31 statements in the documents, and in some instances hearsay within hearsay. Plaintiffs’ third objection challenges Defendant’s use of general lack of knowledge denials as a violation of Local Rules. Defendant responded to Plaintiffs’ Motion by asserting that it received most of the challenged documents from Plaintiff and therefore they do not require authentication.4 The remaining exhibits were allegedly authenticated by deposition testimony,5 by distinctive characteristics or surrounding circumstances,6 or affidavits.7 Further, Defendant argues that the hearsay rule does not prohibit the consideration of such evidence on summary judgment if it could be admissible at trial. Plaintiffs’ Reply argues that Defendant’s Response does not provide any basis for admissibility of the challenged documents, because authentication is only a preliminary consideration. Plaintiffs assert that hearsay bars the admission of the content of the challenged documents, and that some 4 Exhibit numbers 8, 11, 15, 17, 20, 23, 25-31, 39, 41, 44, 57-61, 63, and 68. 5 Exhibits 12 and 66. 6 Exhibits 6, 19, 24 and 56. Defendant also stated that it will “secure affidavits” for these documents in the interest of judicial economy. However, these affidavits were not produced. 7 Exhibits 11, 23 and the expert report of Dr. Kingston. Defendant filed with its Response to the Motion to Strike the affidavits of Dr. Kingston and Mr. Portnoff. 4 Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 5 of 31 documents contain multiple layers of hearsay. Plaintiffs also challenge Defendant’s failure to address the issue of general lack of knowledge denials in its Response, and request that all facts which were improperly denied by Defendant be treated as admissions that the fact is not disputed. III. Standard Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, but once that burden has been met, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Motion to Strike challenges the admissibility of the documents relied upon in the Brief in Opposition to the Motion for Summary Judgment, and the pleading of facts in the responsive concise statement. When the admissibility of evidence is challenged, the party relying on the evidence must demonstrate 5 Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 6 of 31 that such evidence is capable of admission at trial before it can be considered on summary judgment. However, [w]e do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing ... [that specific facts show that there is a genuine issue for trial]. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)), see also Lin v. Rohm and Haas Co., 293 F.Supp.2d 505, 511 (E.D.Pa. 2003). Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial. It is clear that the party offering the evidence must demonstrate that it could satisfy the applicable admissibility requirements at trial before the evidence may be used on summary judgment. See Robinson v. Hartzell Propeller Inc., 326 F.Supp.2d 631 (E.D.Pa. 2004), and Henry v. Colonial Baking Co. of Dothan, 952 F.Supp. 744, 750 (M.D.Ala. 1996). III. Objections based upon Local Rules The Local Rules require each party to submit a concise statement of undisputed material facts supported by “a particular 6 Case 2:02-cv-02104-AJS Document 103 Filed 08/26/05 Page 7 of 31 pleading, deposition, answer to interrogatory, admission on file or other part of the record supporting the party’s statement, acceptance or denial of the material fact.” W.D. PA. R. 56.1 (B)(1) (2005). Documents referred to in the concise statement must be included in an appendix. Id. at (B)(3). Additionally, by court order, the parties in this case were required to submit a joint statement of material fact.8 (Doc. # 79, 87 and 91). The purpose of Local Rule 56.1 is to aid the court in deciding a motion for summary judgment by identifying material facts and supporting documentation to determine whether or not the fact is disputed. See W.D. PA. R. 56.1 (2005). In support of this purpose, the Local Rules expressly require that the party opposing a motion for summary judgment file a responsive concise statement of material facts which specifies whether the other party’s statement of facts is admitted or denied, and sets forth in separately numbered paragraphs, the basis for such denial with citation to the record.