New York courts mandate that the movant on a summary judgment motion authenticate exhibits or be subject to denial. Thus, it is prudent that counsel devote sufficient time and energy during the discovery process addressing admissibility issues as a prelude to motion practice and trial. Historically, federal courts likewise required that all documents submitted in support or in opposition to a summary judgment motion be authenticated. See, Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). See also, Young v. Daughters of Jacob Nursing Home, 2011 WL 2714208, at *1, fn. 1 (S.D.N.Y. 2011) (“It is also settled that exhibits submitted in connection with a summary judgment motion must be authenticated and non-hearsay in order to be considered.”). In sophisticated commercial practice, where document exchanges are often measured in Gigabytes, not pages, the dedication of highly coveted pages of moving papers to authenticate mainstream moving documents seems, at times, to be a waste of valuable resources.
In federal court (home of the seven hour limit on depositions [FRCP 30(d)], mandatory initial disclosure [FRCP 26(a)(1)] and discovery completion deadlines which subtly encourage counsel to sprint between depositions), the Federal Rules of Civil Procedure have been amended concerning the submission of unauthenticated documents concerning summary judgment motions. In typical fashion, the Federal Rules of Civil Procedure elevate substance over form.
In ForeWord Magazine, Inc., v. OverDrive, Inc., 2011 U.S. Dist. Lexis 125373, Case No. 1:10-cv-1144 (W.D. Michigan 2011), the court specifically addressed the impact of the changes to the procedure governing the submission of unauthenticated evidence in support of a motion for summary judgment. There, plaintiff ForeWord Magazine, Inc. (“ForeWord”) brought a trademark action against defendant OverDrive, Inc. (“OverDrive”), asserting, inter alia, a claim for cybersquatting under 15 U.S.C. § 1125(d), to which ForeWord thereafter moved for summary judgment on its cybersquatting claim. In response, defendant OverDrive filed a motion to strike certain exhibits relied upon by plaintiff in its motion for, inter alia, not being authenticated.
In addressing the changes to Rule 56, the court noted that “In some respects, the 2010 amendment to Rule 56 works a sea of change in summary judgment procedures and introduces flexibility (and consequent uncertainty) in place of the bright-line rules…” The court explained, however, that with the enactment of amendments to Rule 56, the “unequivocal requirement” that documents submitted in support of a summary judgment motion must be authenticated was removed, and now “allows a party…to cite to materials in the record including, among other things, ‘depositions, documents, electronically stored information, affidavits or declarations’ and the like.” ForeWord Magazine, Inc., at *4-5, quoting FRCP 56(c)(1)(A).
Furthermore, subdivision (c)(2) of Rule 56 allows a party to make objections to unauthenticated documents contained in summary judgment papers, which does not have to be made by a separate motion to strike. After an objection is made, the party proffering the documents would then be given an opportunity to show that the material is admissible or to explain the admissible form.
The court in ForeWord found that the amended rule distinguished between material that “has not” been submitted in admissible form, rather than material that “cannot” be submitted in admissible form. Specifically, the court stated that “the objection contemplated by the amended Rule is not that the material ‘has not’ been submitted in admissible form, but that it ‘cannot’ be.” From a practical point of view the difference is significant, as the rule seems preclude objections by an attorney as to unauthenticated evidence to which he or she knows could be submitted in admissible form.
In ForeWord, the court addressed the objections made by the defendant that certain exhibits were unauthenticated with the recent changes to Rule 56. In analyzing the amended Rule 56, the court held that the “submission of unauthenticated exhibits is not a violation of any express obligation imposed by the rules. Rather, it is grounds for objection, in which case the proponent has the burden to show that the material is admissible as presented or to explain the admissible form that is anticipated.” According to the court, the exhibits that the defendant objected to were indeed unauthenticated, and “would have been condemnable as sloppy lawyering as late as November 30, 2010.” However, under the new amended Rule 56 the court allowed plaintiff to come forward with supplemental affidavits authenticating the documents to which were the target of defendant’s objections. After discussing whether the supplemental affidavits authenticated the exhibits objected to, the court concluded that the supplemental affidavits were sufficient to authenticate the exhibits under the Federal Rules of Evidence and applicable case law.
Assuming time and space permits, it is good practice to submit documents in admissible form in the first instance to safeguard against additional costly motion practice, notwithstanding that an attorney may be able to supplement his or her papers later due to the recent changes to the FRCP Rule 56.