New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

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

Download PDF

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.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice