From Mike Hooks Dredging Co. v. Eckstein Marine Serv., 2010 U.S. Dist. LEXIS 101724 (E.D. La. Sept. 27, 2010):
Eckstein opposes Longman's motion, arguing that a genuine issue of material fact exists as to whether Longman's was a broker or a charterer. *** It argues that an email sent by Longman's related to the litigation admitted that Longman's took part in a "back-to-back" charter of the M/V CAPTAIN TOMMIE, JR. *** Indeed, they claim that Longman's admitted in an email to entering into a "verbal charter contract" with another charterer.***
Longman's disputes the admissibility of those emails, arguing that they are unauthenticated and hearsay and therefore are not sufficient to create a genuine issue of material fact. *** Further, they note that the author of the emails at issue, Christopher Carey ("Carey"), is not listed as counsel for Longman's, and they therefore argue that he was not acting in a representative capacity for Longman's when he wrote the emails. *** In a footnote to that brief, they indicate that Carey "was hired by Longman's underwriter, Great American Insurance, to provide a coverage option to Great American." ***
In their reply, Eckstein suggests that the emails are non-hearsay admissions of a party opponent under Federal Rule of Evidence 801(d)(2)(A) or 801(d)(2)(D) as statements made by an authorized party, but Eckstein fails to explain the basis for Carey's alleged representation of Longman's. *** Without more information about Carey, the Court cannot find that the emails in their entireties are admissible under Rule 801(d)(2)(D).
However, as the Supreme Court clearly stated in Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), "[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." Therefore it is unnecessary at this stage for the Court determine whether the emails in their entireties are admissible under Rule 801 or any other rule.
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