Commercial Litigation and Arbitration

Summary Judgment — “Admissible” Evidence — Internet/Email Evidence

Federal Rule of Civil Procedure 56 requires the submission of admissible evidence on summary judgment. Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence...." The cases consistently hold that inadmissible matter may not be considered on summary judgment. But what level of proof is required by the phrase "would be admissible ?" Is it necessary, for example, to get affidavits or certifications from every document custodian to prove that business records satisfy Fed.R.Evid. 803 (6)? No. As pointed out by District Judge J. Owen Forrester in Sklar v. Clough, 2007 U.S. Dist. LEXIS 49248 (N.D. Ga. July 6, 2007), "a district court may 'consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form'" (citation omitted). This is not just a hearsay proposition but one of general application.

Internet Evidence.The plaintiff in Sklar offered printouts from the website of Georgia Tech, the institution employing all of the defendants, including printouts purporting to be statements by certain of the defendants. The defendants objected that the website excerpts were not properly authenticated and contained hearsay. Held,:

"The court need not determine whether the excerpt is hearsay or not because the court finds that if hearsay, the excerpt can be reduced to admissible evidence at trial. Defendants have not argued that the excerpt is not from Georgia Tech's ... website. Contrary to Defendants' protestations, there are surely witnesses within the Georgia Tech community who would be able to authenticate the excerpt."

For discussion of what that authentication would require, see the article entitled Internet & Email Evidence on the Recent Articles page.

Email Evidence. The defendants also objected to the authenticity of emails they produced to the plaintiffs. Without more (and defendants had no more), that is a doomed objection:

"The e-mails in question were produced by Defendants during the discovery process. Such documents are deemed authentic when offered by a party opponent."

This proposition is also discussed in the article mentioned above.

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