Eaton Peabody: Evidentiary issues in summary judgment practice Surviving rule 56 motions

News >> Publications >> Stephen G. Morrell, Esq. Surviving rule 56

The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof…Fed. R. Civ. P. 56(e) Advisory Committee’s note to 1963 amendment.

Consideration of a summary judgment motion “necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986).

A cornerstone of the rationale for having a summary judgment process is that a trial is not warranted if a party cannot identify admissible evidence that establishes an actual factual dispute. Stanley v. Hancock County Commissioners 2004 ME 157.
A summary judgment is “appropriate only when the facts before the court so conclusively preclude recovery by one party that judgment in favor of the other is the only possible result.” Spickler v. Greenberg, 586 A.2d 1232, 1234 (Me. 1991).
The trial court will consider only the portion of the record referred to, and the material facts set forth, in the statements of material facts accompanying the [summary judgment] motion. Corey v. Norman Hansen and DeTroy, 742 A.2d 933, 1999ME196 (Me. 1999).
There must be a competent proof of facts, admissible at trial, to demonstrate that a genuine issue of material fact exists. Seashore Performing Arts Center Inc. v. Town of Old Orchard, 676 A.2d 482 (Me. 1996)
Reliance upon pleadings is insufficient. Defendant must offer admissible evidence in support of defense. Key Trust Co. of Maine v. Nasson College, 697 A.2d 408 (Me. 1997).
…counsel must remember that the requirements of Rule 56(e) are set out in mandatory terms and the failure to comply with those requirements makes the proposed evidence inadmissible during the consideration of the summary judgment motion. Supporting materials designed to establish issues of fact in the summary judgment proceeding “must be established through one of the vehicles designed to insure reliability and veracity – depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence.” Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987).
Because of the form of evidence before a court on a summary judgment motion, evidentiary inferences based on credibility or weight are impermissible. Emerson v. Sweet, 432 A.2d 784 (Me. 1981).
1. But see Stanley v. Hancock County Commissioners 2004 ME 157: Presence of the issue of motivation or intent does not relieve plaintiff of burden of producing evidence to create a question of fact for trial.
2. Note dissent in Stanley questioning the propriety of resolving disputed issue of intent or motivation by summary judgment:
  1. “court has consistently held that determinations of motive and intent …are questions better suited for the jury, as proof is generally based on inferences that must be drawn…”
  2. “A genuine issue of material fact remains any time the evidence “requires a fact-finder to choose between competing versions of the truth at trial””(citing MP Assoc. v. Liberty 2001 ME 22, 771 A. 2d. 1040,1044.)
Expert opinions may not form the basis for successful opposition to judgment if there are no facts in evidence on which to apply theory to case at hand. Green v. Cessna Aircraft Co., 673 A.2d 216 (Me. 1996).
Plaintiff’s interrogatory answer summarizing the anticipated testimony of Plaintiff’s expert witness “not suitable grist for the summary judgment mill.” Garside v. Osco Drug Inc., 895 F.2d 46 (1st Cir. 1990).

In order to satisfy the evidentiary standard of competence, testimonial evidence must be based upon personal knowledge.
1. Rule 43 of both the Federal Rules of Evidence and Maine Rules of Evidence allow a court to accept testimonial evidence in support of a motion by affidavit.
  1. F.R. Evid. 601 provides that any person is competent to testify except as provided otherwise in the Federal Rules of Evidence.
  2. F.R. Evid. 602 provides that a person is not competent to testify regarding a matter unless it can be shown through evidence that he or she has personal knowledge of the matter.
  3. The witness must have actually perceived or observed that which he or she testifies to. Hallquis v. Local #276, 843 F.2d 18, 24 (1st Cir. 1988).
  4. Attorneys may present arguments based upon facts outside their personal knowledge. Such statements cannot, therefore, constitute admissible testimonial evidence. F.R. Evid. 602.
    1. Letter signed by opposing counsel is not evidence on a summary judgment motion. Goding v. Tri County Emergency Medical Services, 568 A.2d 1105, 1105 ftn.1 (Me. 1990).
    2. Counsel’s affidavit and appraisal of administrative record not admissible. Steeves v. Irwin, 233 A.2d 126 (Me. 1967).
    3. Counsel’s arguments and assertions do not qualify as evidence. Nieves v. University of Puerto Rico, 7 F.3d 270, 276 n.9 (1st Cir. 1993).
    4. Attorney’s affidavit that stated merely that counsel was “fully familiar with the facts and circumstances of the case struck as insufficient.” Carnrite v. Grenada Hosp. Group Inc., 175 F.R.D. 439, 448 (W.D.N.Y. 1997).
2. When evidence is presented in the form of affidavits, they must be based on personal knowledge and contain admissible evidence (not an unauthenticated document appended to the complaint). Estate of Althenn v. Althenn, 609 A.2d 711 (Me. 1992). See also Sun Lumber v. Loiselle, 593 A.2d 213 (Me. 1991)
  1. But see Casco Northern Bank NA v. Estate of Grosse, 657 A.2d 778 (Me. 1995). Affidavits sufficient even though copies of papers referred to in an affidavit were not attached, and affidavit did not state affiant was making affidavit on personal knowledge. (Same papers were attached to complaint and it was apparent from the body of the affidavit that the affiant had personal knowledge).
3. Unsworn and unsigned statements of witnesses are not proper summary judgment evidence. Denmen v. People’s Heritage Bank Inc., 704 A.2d 411 (Me. 1998).
4. Affidavit should show the affiant’s competency to testify, i.e. the context in which the affiant was in position to have personal knowledge. Steeves v. Irwin, 233 A.2d at 130; Spickler v. Greenberg, 586 A.2d 1232 (Me. 1991).
  1. An opponent is entitled to use extrinsic evidence to establish an affiant’s lack of personal knowledge. See Flair Broadcasting Corp. v. Powers, 733 F.Supp. 179, 182 -183 (S.D.N.Y. 1990) (striking key portion of affidavit because affiant’s deposition testimony established lack of personal knowledge .
5. Conclusions of fact and law do not properly belong in an affidavit. Nor should a Movant rely upon statements purporting to describe the substance or to interpret the contents of documents. Town of Orient v. Dwyer, 490 A.2d 660 (Me. 1985).
6. Affidavit is insufficient when the averments are conclusory and span more than forty (40) years and the affidavit states no circumstances showing that the affiant could have the kind of continuing personal knowledge of such facts to render him competent to testify. Richard’s Realty Co. v. Inhabitants of Town of Castle Hill, 406 A.2d 412 (Me. 1979).
7. Counter affidavits must track the allegations which are central to the argument in opposition to summary judgment. Houlton Band of Maliceet Indians v. Boyce, 688 A.2d 908 (Me. 1997).
8. One spouse cannot, by answer to interrogatory, recite his spouse’s state of mind or her reliance upon a third party statement and effectively oppose summary judgment. Hunnewell v. Liberty Mutual Fire Insurance Co., 588 A.2d 300 (Me. 1991).
9. The proponent of deposition testimony must establish its admissibility. Like affidavits, deposition testimony that is not based upon personal knowledge and is hearsay is inadmissible on a motion for summary judgment. Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990).
In order to satisfy the evidentiary standard of competence, documentary evidence must be both authenticated and admissible.
1. Rule 56 does not specifically refer to documents, except to state that certified or sworn copies of all papers referenced in affidavits must be attached to or served with them.
2. The proponent of documentary evidence must lay a foundation authenticating the documents before using them to support or thwart a motion for summary judgment. e.g. Hal Roach Studios Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 – 51 (9th Cir. 1990).
3. Me. R. Evid. and F.R. Evid. 901(a) provide: “the requirement of authentication or identification” … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
  1. Something is authenticated once a “court discerns enough support in the record to warrant a reasonable person in determining that the evidence is what it purports to be…” United States v. Mulinelli – Navas, 111 F.3d 983, 990 (1st Cir. 1997)
  2. A document’s authenticity may be confirmed by appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with the circumstances. See Me. R. Evid. and F.R. Evid. 901(b)(4).
  3. A document may be authenticated by the testimony of a person with personal knowledge. See F.R. Evid. 901(b)(1). Mulinelli-Navas, 111 F.3d at 990. See also Diversified Foods, Inc. v First National Bank of Boston, 605 A.2d 609 (Me. 1992).
  4. Special rules for business records. To authenticate business records under Rule 803(6), of either the federal or Maine rules, a witness need not be the actual person who prepared the records; “a qualified witness is…one who can explain and be cross-examined concerning the manner in which the records are made and kept.” United States v. Kayne, 90 F.3d 7, 12-13 (1st Cir. 1996).
    1. Subsections 11 and 12 were recently added to Rule 902. They set forth procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.
    2. F.R. Evid. 803(6) and Me.R. Evid. 803(6) were amended at the same time to add a provision permitting admission of a business record certified under F.R. Evid. 902 or Me. R. Evid. 902.
  5. A document may be admitted as evidence if accompanied by an affidavit from a competent witness (F.R. Evid. 601 and 602) that authenticates the document (F.R. Evid. 901) and the document is otherwise admissible.
  6. Presentation of documents through an affidavit by a witness without authentication evidence renders the documents subject to a hearsay objection. In re Roberts, 210 BR 325, 329 (Bankr.N.D. Iowa, 1997)
  7. Documents attached to pleadings or motions are, therefore, not evidence.
4. Authentication alone does not establish admissibility.
  1. For example, although newspapers fall within the self-authentication provisions of Rule 902, they remain inadmissible if they include hearsay for which the proponent cannot establish an exception. News articles offered to proof the truth of the reported facts are classic examples of inadmissible hearsay. e.g. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993).
Cautions
1. Unopposed Statements of Fact may become evidence.
  1. Failure to object to defects in affidavits (conclusory statements and failure to attach certified copies of papers referred to) constitutes a waiver of the procedural requirements of Rule 56. Town of Orient v. Dwyer, 490 A.2d at 662.
    1. Lack of certification for copies of reference documents is type of technical defect waived by parties’ failure to object. Id. Kennebunk Savings v. West, 538 A.2d 303 (Me. 1988).
    2. Same is true with respect to jurat’s failure to recite explicitly that affiant swore to the truth of the statements in the affidavit. Id.
    3. Argument as to competency of affiant waived if not raised at trial level. Houlton Band of Maliseet Indians, 688 A.2d at 911.
    4. Waiver of authentication requirement found for failure to challenge authenticity in the District Court. H. Sand and Co. Inc. v. Airtemp Corp., 934 F.2d 450, 454 (2nd Cir. 1991)
  2. Me. R. Evid. 103 and Fed. R. Evid. 103 require that a timely and specific objection or a motion to strike be made if counsel contends that certain evidence ought not be considered by the Court.
    1. If you do not object or move to strike or if you do not specify your objections, you will have waived your objections and the Court may consider even inadmissible evidence in deciding the motion for summary judgment. Friedel v. City of Madison, 832 F.2d at 971 n.4.
    2. But see Richard’s Realty Co. v. Inhabitants of Town of Castle Hill, 406 A.2d 412 (Me. 1979) (Plaintiff has no obligation to respond to legally insufficient statements contained in affidavit submitted in support of defendant’s motion for summary judgment.), as well as the dissent in Stanley v. Hancock County Commissioners (plaintiff entitled to disregard, or call upon the Court to disregard state of mind opinions).
    3. Failing to move to strike insufficient attorney affidavit in the District Court waived any objection to the affidavit. In re Teltronic Services Inc., 762 F.2d 185, 192 (2nd Cir. 1985).
    4. To preserve the record and to demonstrate the infirmities of your opponent’s case, object vigorously and move to strike inadmissible evidence in a separate motion. Farrell v. Theriault, 464 A.2d 188 (Me. 1983). See also Zayre Corp. v. S.M. and R. Co. Inc., 882 F.2d 1145, 1150 (7th Cir. 1989).
2. Evidentiary defects may be compounded by procedural gaffes.
  1. See,Doyle v. Department of Human Services, 824 A.2d 48, 2003 ME 61.
    1. Non-movant failed to effectively controvert facts set forth in movant’s statement of material facts;
    2. Non-movant did not support many of her denials and qualifications with record citations relevant to proposition for which they were cited;
    3. Non-movant, in her statement of disputed facts, commingled additional facts in paragraphs that should have been limited to controverting movant’s asserted facts;
    4. Non-movant relied on citations to affidavits containing inadmissible hearsay and statements for which affiants had no personal knowledge;
    5. Court need not consider additional facts when they are improperly commingled in the nonmoving party’s paragraphs responding to the moving party’s material facts and are not set forth in a separate section of additional facts organized in separate numbered paragraphs added pursuant to rule of civil procedure on summary judgment;
    6. Each party’s statement of material facts must contain specific record references which refer to evidence of a quality that could be admissible at trial.
  2. See, also Stanley v. Hancock County Commissioners 2004 ME 7.
    1. To create a jury question as to the adequacy of a factual defense, plaintiff must deny the material facts which establish the defense and support the denials with record citations to admissible evidence.
    2. But see dissent: (one party should not profit from a Rule 56 violation while the other is penalized).
3. Inadmissible responses to discovery may be summary judgment evidence.
  1. Goding v. Tri County Emergency Medical Services, 568 A.2d at 1106.
    1. Summary judgment motion is not required to be based upon affidavits.
    2. There is no requirement in Rule 56 that answers to interrogatories be based upon personal knowledge.
    3. Answers to interrogatories may not be admissible at trial, but Rule 56 permits their use where issue is whether there are any genuine issues of material facts.
  2. But see Hunnewell v. Liberty Mutual Fire Ins. Co., 588 A.2d at 303.

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