Musket Corp. v. Suncor Energy (USA) Mktg., Inc., 2016 U.S. Dist. LEXIS 157664 (S.D. Tex. Nov. 15, 2016):

Pending before the court are (1) plaintiff Musket Corporation's ("Musket") objections to and motion to strike defendant Suncor Energy (U.S.A.) Marketing, Inc.'s ("Suncor") summary judgment evidence (Dkt. 84) ("Musket's SJE Objections"); (2) Suncor's objections to and motion to strike Musket's evidence filed in response to Suncor's motion for summary judgment (Dkt. 95) ("Suncor's SJE Objections); and (3) Musket's objections to and motion to strike Suncor's evidence filed in response to Musket's motion for partial summary judgment on Suncor's affirmative defenses (Dkt. 99) ("Musket's PSJE Objections"). ***

I. Background

There are currently two motions for summary judgment and one motion for partial summary judgment pending in this case. Dkts. 72, 73, 78. The court is unable to address the motions for summary judgment and partial summary judgment until it rules on the plethora of evidentiary objections lodged by both parties.

This is a breach of contract case. Musket is a commodity supply, trading, and logistics company, and Suncor is a crude oil supply, marketing, and trading company. Dkt. 25 (second amended complaint). In April 2013, Musket and Suncor entered into a Master Agreement for U.S. Crude Oil Purchase, Sale, or Exchange Transactions (the "MSA") and a Physical Confirmation Transaction (the "Confirmation"). The MSA relates to Musket's agreement to buy [*3]  and Suncor's agreement to sell crude oil. Id. The Confirmation establishes the logistics such as quantities, delivery dates, and price. Id. Musket claims that Suncor did not deliver the crude oil in the agreed-upon quantities, did not comply with the compensation provisions in the Confirmation, and failed to abide by the confidentiality provisions in the MSA and Confirmation. Id. Suncor asserts various affirmative defenses, including that (1) Musket's claims are barred by Section S of the MSA, which relates to exclusions and limitations; and (2) Musket's claims are barred due to the occurrence of an Interruption as defined by the MSA. Dkt. 37.

As noted, both parties have now moved for summary judgment and asserted multiple evidentiary objections. This order addresses only the objections to evidence contained at docket entries 84, 95, and 99.

II. Legal Standard

Under Federal Rule of Civil Procedure 56(c)(2), a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). The comments to the Rule indicate that "the burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." [*4]  Fed. R. Civ. P. 56, Advisory Comm. Notes, 2010 Amendment. Under Rule 56(c)(4), a "declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4) (emphasis added). Taken together, it is clear that these rules allow evidence at the summary judgment stage that is not perfectly authenticated so long as there is no question that the proponent will be able to prove that the evidence is what it purports to be at trial. Musket does not object that these documents are not actually what they purport to be, only that they are not perfectly authenticated at this stage.

Under Rule 901(a), in order to properly authenticate an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Under Rule 802, hearsay "is not admissible unless" a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court "provide[] otherwise." Fed. R. Evid. 802. There are, of course, many exceptions to the rule against hearsay in the Federal Rules of Evidence, including the business records exception (Rule 803(6)). And, certain types of statements are not hearsay under [*5]  the Rules, such as a statement by an opposing party that is offered against that party (Rule 801(d)) ("Statements That Are Not Hearsay").

III. Analysis

A. Musket's SJE Objections (Dkt. 84)

Musket objects to Suncor's summary judgment evidence and moves to strike certain exhibits as well as all references to the exhibits in Suncor's motion for summary judgment. Dkt. 84. It first objects to Exhibits A, J, L, R1--R10, and S1--S27 as constituting hearsay or not being properly authenticated. Id. It then objects to portions of three transcripts of depositions contained at Exhibits B, C, and G as incomplete, improper, or misleading. Id. The court will first consider the authentication and hearsay objections and will then address the objections to the deposition transcripts.

1. Suncor Exhibits A, J, L, R1-R10, S1-S27

Musket first objects to the following exhibits to Suncor's motion for summary judgment: Exhibits A, J, L, R1-R10, and S1-S27. Dkt. 84. Exhibit A is the MSA and Confirmation. Id. Exhibit J is an email from Clark Henry to Brian O'Rourke. Id. Exhibit L is an email from Clark Henry to Kent McAlister. Id. Exhibits R1-R10 and S1-S27 are emails that were attached to the declaration of Brian C. Boyle, who [*6]  is a lawyer at the firm representing Suncor and attested that the emails attached to his declaration were "true and correct copies." Id.; Dkt. 73-1 (Boyle Dec.). Musket asserts that Boyle cannot authenticate these documents based on personal knowledge. Dkt. 84. Musket also objects that the emails constitute hearsay. Id.

Suncor responds to Musket's objections by first noting that it is absurd for Musket to object to the very contract upon which it bases its entire claim because Suncor did not properly authenticate it. Dkt. 97. Substantively, Suncor notes that the bar for authentication in not high and that Boyle's declaration is sufficient for the court to conclude that the documents are what they purport to be. Id. Suncor additionally points out that most of the exhibits (Exs. A, J, R-2, R-4, R-5, S-1, S-6, S-8, S-11, S-17, S-19, S-20, S-21, S-22, S-26, and S-27) have been authenticated by a fact witness or Musket's own verified interrogatory answers. Id. Suncor additionally argues that even if the documents are not properly authenticated, all of the exhibits satisfy Federal Rule of Civil Procedure 56(c)(2), which only requires that exhibits offered in support of summary judgment be capable of being offered in admissible [*7]  form at trial. Id. Suncor notes that the emails and attachments at J, L, R, and S are all from emails generated by Musket, so Musket's witnesses can authenticate them at trial. Id. Suncor also attaches, "in an abundance of caution," Boyle's amended declaration with its response. Id. In the amended declaration, Boyle clarifies that he has "personal knowledge of the facts stated [in the declaration] from the records involved in this litigation, and they are true and correct." Dkt. 97-1. Boyle additionally points out that Exhibit A was produced by Suncor during discovery, Exhibit J and L and the emails at Exhibits R1--R-10 were produced by Musket during discovery, and Exhibits S-1--S-27 were either produced by Musket or Suncor during discovery. Id. Musket objects to the amended declaration as untimely. Dkt. 102.

The court will first address the objection to the amended declaration. It will then address Musket's objections to Exhibit A and the emails at Exhibits J, L, R1--R-10, and S-1--S-27, in seriatim.

a. Objection to Amended Declaration. Musket objects to Boyle's amended declaration, which it contends is untimely. Dkt. 102. It additionally points out that the only change in the amended declaration [*8]  from Boyle's original declaration is that Boyle now states that Musket produced the documents during litigation. Id. The court OVERRULES Musket's objection to the amended declaration. Musket had sufficient time to respond to the minimal changes in the declaration.

b. Objection to Exhibit A. Exhibit A is the MSA and Confirmation (offered as a single document). Musket--the party objecting to the MSA and Confirmation--filed a copy of the MSA and Confirmation as an exhibit to its own motion for summary judgment. See Dkt. 72, Fjeld-Hansen Dec. Ex. A. Musket does not contend that the copy attached to Suncor's motion is a different agreement and that the court should rely only on the copy filed with Musket's motion. It merely takes issue with how Suncor "authenticated" the attachment. See Dkt. 84. The court finds that this is a frivolous objection. The objection to Exhibit A is OVERRULED.

c. Objections to Email Exhibits. The court next addresses Musket's concern relating to all of the emails and other documents attached to the Boyle Declaration that were produced by Musket during discovery. Musket notes that while the state of Texas has a rule that indicates that documents produced by an opposing [*9]  party are self-authenticating, the federal courts do not have a parallel rule. See Dkt. 102 (citing Tex. R.Civ. P. 193.7). Regardless, it defies logic for Musket to argue that emails that it produced from its employees are not authentic. Musket has an obligation under the federal rules to "produce documents as they are kept in the usual course of business." See Fed. R. Civ. P. 34(b). While the court understands that Musket is simply attempting to hold Suncor to its obligation to authenticate its evidence, in this case the declaration provided indicating that Musket produced these documents--along with the Musket Bates number that is clearly affixed to each document--is sufficient because there is no concern that the emails that Musket produced from its employees are not what they purport to be. Cf. Nola Fine Art, Inc. v. Ducks Unlimited, Inc., 88 F. Supp. 3d 602, 607 (E.D. La. 2015) ("Ducks Unlimited produced the email to plaintiffs in discovery and therefore cannot seriously dispute the email's authenticity."). Musket's objection that the emails that it produced during discovery are not properly authenticated is OVERRULED.

Musket also contends that the emails that Suncor produced and offered into evidence are not properly authenticated. The court finds that the declaration of Suncor's counsel is sufficient [*10]  to show that these emails are what they purport to be. Moreover, Suncor can easily authenticate the emails at trial, which means that the emails can be offered in admissible form at trial. Therefore, Musket's objection that the emails produced by Suncor are not properly authenticated is OVERRULED.

Finally, Musket makes a general hearsay objection to all the emails. Suncor does not directly address the hearsay objection but does cite several cases in which courts have overruled hearsay objections when the objecting party did not argue that the information could not be submitted in admissible form at trial. See Dkt. 97 at 3 n.4 (citing, e.g., Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (emphasizing that the standard at the summary judgment stage is whether the evidence "could be presented at trial in an admissible form"). Here, the objected-to emails and records should be presented in a form that is admissible at trial because they will fall either into the business records hearsay exception or will be considered admissions of a party opponent and thus not hearsay. See Fed. R. Evid. 801(d); Fed. R. Evid. 806(6); see also BP Expl. & Prod. Inc. v. Cashman Equip., No. 13-3046, 2016 WL 1387907, at *11 (S.D. Tex. Apr. 8, 2016) ("The exhibits include documents and emails generated by the parties, admissible as party-opponent admissions under Rule of Evidence 801(d) and business [*11]  records under Rule 803(6)."). Musket's general hearsay objections are OVERRULED.