Authenticating Exhibits for MSJ

Regular readers of this blog will know each judge enforces the same rules slightly differently. When submitting motions to the court, it is important to evaluate whether the judge will actually consider your supporting evidence.

This issue arose in Judge Mahan’s Vannah v. Lincoln Gen. Ins. Co., 2013 U.S. Dist. LEXIS 106450, 2-3 (D. Nev. July 30, 2013) order. There Lincoln General moved for summary judgment. Only admissible evidence can support such a motion. “Authentication is a ‘condition precedent to admissibility,’ and can be satisfied by ‘evidence sufficient to support a finding that the item is what the proponent claims it is.'” Id. (quoting Rule 901(a)). The Ninth Circuit has even published a decision articulating the standard for authentication of evidence on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002).

Here both parties failed to properly authenticate the evidence both for and against summary judgment.

For example, defendant failed to authenticate two depositions heavily relied on in its motion for summary judgment—exhibit B and exhibit H. A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter’s certification that the deposition is a true record of the testimony of the deponent. See Fed.R.Evid. 901(b); Fed.R.Civ.P. 56(e) & 30(f)(1); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988); Pavone v. Citicorp Credit Servs., Inc., 60 F.Supp.2d 1040, 1045 (S.D.Cal. 1997) (excluding a deposition for failure to submit a signed certification from the reporter). “Ordinarily, this would have to be accomplished by attaching the cover page of the deposition and the reporter’s certification to every deposition extract submitted.” Orr, 285 F.3d at 774.

As the moving party failed to meet its initial burden to support the motion, summary judgment was denied. My bet is it was refiled, this time with authenticated exhibits.