Commercial Litigation and Arbitration

Email Sufficiently Authenticated by Appearance and Contents — 12(f) Inapplicable to Affidavits and Evidence — Enforcement of Local Rule Limiting Brief Page Length Is Discretionary with the Court

From Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June 7, 2010):

[12(f).] Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). Contrary to Plaintiff's view, "Rule 12(f) applies only to pleadings and has no applicability to motions made in pursuit or in opposition to summary judgment." Pilgrim v. Trs. of Tufts Coll., 118 F.3d 864, 868 (1st Cir. 1997), abrogated on other grounds by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002); see Vehicle Prot. Plus, L.L.C. v. Premier Dealer Servs., Inc., 650 F. Supp. 2d 800, 807 n.4 (E.D. Tenn. 2009); see also United States v. Crisp, 190 F.R.D. 546, 550-51 (E.D. Cal 1999). Therefore, Plaintiff's motion to strike is denied because it seeks to strike a filing other than a pleading. ***

[Exceeding Brief Page Length Allowed by Local Rule.] Plaintiff aptly points out that "the supporting brief filed by Defendants contains twenty-eight (28) pages of text, with one page of that total dedicated to a certificate of service." *** Plaintiff also correctly states that Local Rule 7.1(D) provides that no brief shall be filed with this Court that exceeds twenty-five pages in total length. ***

[Footnote 3] Plaintiff also argues that Defendant's appendices should be considered for the purposes of Local Rule 7.1(D). ***

Plaintiff errs, however, by assuming that the Local Rules apply to this Court the same way that they apply to counsel. Indeed, the Western District's Local Rules provide "mandatory guidance for the appropriate manner to file motions and briefs in this Court." *** The Court creates the Local Rules for its own benefit. It follows that enforcement of the Court's own local rules is discretionary — particularly when the Local Rules conflict with the aims of the Federal Rules set forth in Rule 1 of the Federal Rules of Civil Procedure. McCargo, 545 F.2d at 402 (local rules maybe struck down if they are inconsistent with the Federal Rules of Civil Procedure).

The Federal Rules of Civil Procedure are construed by the District Court to secure a "just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. The essence of the Federal Rules is that they provide the District Court with the ability to adjudicate matters on their merits without resorting to arcane and draconian pleading rules that ultimately deprive an injured party of his or her day in court. See Conley v. Gibson, 355 U.S. 41, 48 (1957); Foman v. Davis, 371 U.S. 178, 181-82 (1962) (controversies should not be adjudicated on technicalities under the Federal Rules). Plaintiff's hyper-technical motion creates a mountain out of a three-page mole hill. In essence, it seeks to do exactly what the Federal Rules of Civil Procedure prohibit — avoidance of adjudication on the merits through the exploitation of a technicality. ***

[Email Authentication.] Plaintiff also contends that Memoranda Exhibits A and B are not sufficiently authenticated and moves to strike them on that basis.... Memorandum Exhibit A contains e-mails allegedly authored by Plaintiff***.

It appears that the basis for Plaintiff's motion to strike is Fed. R. Evid. 901. In the Fourth Circuit, "[i]t is well settled that unsworn, unauthenticated documents cannot be considered on motions for summary judgment." *** The general rule is that the authentication requirement is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). ***Plaintiff first argues that Hardin's e-mails were never authenticated and must therefore be stricken. Under Rule 901(a), "all that is required is 'evidence sufficient to support a finding that the matter in question is what its proponent claims.'" United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).

In United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006), the district court authenticated the e-mails in question under Rule 901(b)(4) by examining their "'distinctive characteristics and the like,' including '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.'" *** The court observed that the e-mails had "many distinctive characteristics, including ... the name of the person connected to the address." *** The court also noted that "[t]he contents of the e-mails also authenticate them as being from the purported sender and to the purported recipient." ***

Like in Safavian, the distinctive characteristics of Hardin's emails allow for their authentication. The e-mails in this case are provided on a printout that is in the familiar Microsoft Outlook format ***, and they provide "many distinctive characteristics, including . . . the name of the person connected to the address." Safavian, 435 F.Supp.2d at 40. The e-mails also discuss "various identifiable matters" related to Hardin's employment *** which sufficiently authenticate the e-mails as being "what its proponent claims." See id. Therefore, the motion to strike Memorandum Exhibit A is denied.

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