Submitting Evidence in Support of a Motion for Summary Judgment (Federal)

By: Jim Wagstaffe and The Wagstaffe Group

This article discusses how to submit evidence with a summary judgment motion in federal court and covers topics such as the burden to show admissibility, declarations and affidavits, the sham affidavit doctrine, expert witness declarations, exhibits, deposition transcript errata, requests for judicial notice, oral testimony, stipulations, and how to make objections to evidence.

THE SUMMARY JUDGMENT PAPERS MUST CLEARLY IDENTIFY what evidence in the record supports an asserted fact, as well as where that evidence is located in the record.¹ The trial court has no obligation to consider evidence that is not cited to in the papers, even if the evidence is in the record.² The court may, however, consider admissible evidence in the record even if a party does not cite to the evidence.³

Burden to Show Admissibility

Evidence submitted in connection with summary judgment does not have to be presented in an admissible form. The trial court may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in admissible form at trial.⁴

The submitting party bears the burden of showing that the evidence is admissible as presented, or that it could be presented in admissible form at trial.⁵

For example, a trial court did not err in considering expert reports in connection with summary judgment. Although the reports themselves would not be admissible at trial, the experts submitted declarations attesting that they would testify to the matters set forth in their reports. As their testimony would be admissible at trial, the submitting party met its burden of explaining the admissible form of the reports’ content.⁶

Declarations or Affidavits

The declaration/affidavit must be based on the declarant’s personal knowledge.⁷ The personal knowledge requirement for a declarant on summary judgment is minimal; if reasonable persons could differ as to whether the witness has personal knowledge of the facts stated, the declaration testimony is admissible.⁸

Whether the personal knowledge requirement is met may be inferred from the contents of the affidavit or declaration.⁹

For instance, an affiant’s personal knowledge can be reasonably inferred from his or her position and from the nature of his or her personal participation in the matters sworn to in the affidavit.¹⁰

Similarly, if the affidavit’s content makes clear that the affiant relies on information from others rather than firsthand participation or experience, the court may properly refuse to consider the affidavit as not based on personal knowledge.¹¹

A statement by a declarant/affiant that she believes a fact to be true or attests to a fact upon information or belief does not satisfy the requirement that the witness have personal knowledge of the fact.¹²

The declaration/affidavit must set out facts that would be admissible in evidence at trial.¹³ As previously noted, the facts do not have to be in an admissible form.¹⁴ A declaration is generally not admissible at trial; however, the facts asserted to in the declaration are admissible on summary judgment if they would be admissible if testified to by the declarant at trial.¹⁵

Hearsay statements in a declaration that would be inadmissible if testified to at trial are not admissible on summary judgment.¹⁶

For example, in a civil forfeiture action, the district court’s grant of summary judgment had to be reversed because the government’s sole evidence in support of summary judgment was a declaration based entirely on hearsay. The district court should have struck the declaration as inadmissible.¹⁷

The declaration/affidavit must show that the declarant is competent to testify on the matters stated in the declaration.¹⁸

For instance, in an Americans with Disabilities Act case a plaintiff was competent to submit a declaration describing her injuries and symptoms, such as her pain and difficulties while walking, standing, and lifting. As the plaintiff was not a medical professional, however, she was not competent to diagnose her condition or state how that condition limited her major life activities. Those matters were beyond the plaintiff’s common experience and instead required an expert.¹⁹

Declaration Versus Notarized Affidavit

A declaration instead of a notarized affidavit is acceptable provided the declaration is signed under penalty of perjury.²⁰ The declaration should be signed with the following: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”²¹ An undated declaration may be stricken as noncompliant with 28 U.S.C.S. § 1746.²²

If, after giving a party notice and an opportunity to be heard, a court finds that a declaration or affidavit was submitted on summary judgment in bad faith or for the purposes of delay, the court may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result of the submission of the declaration or affidavit. The court may also impose other appropriate sanctions on the offending party or attorney.²³

Sham Affidavit Doctrine

A party may not create a material issue of fact to defeat summary judgment by submitting an affidavit that disputes prior sworn testimony of the affiant. This rule is known as the sham affidavit doctrine.²⁴

The practical reason for the rule is that deposition testimony is deemed more reliable than a declaration or an affidavit.²⁵ If a party could raise an issue of fact defeating summary judgment simply by submitting an affidavit contradicting prior sworn testimony, the utility of summary judgment would be greatly diminished.²⁶

For example, at her deposition a witness was unable to identify the manufacturer of a fuel canister. In an affidavit submitted in opposition to summary judgment, the witness identified the fuel manufacturer. In resolving the summary judgment motion, the district court properly disregarded the affidavit statement.²⁷

To be properly disregarded, the trial judge must find that the declaration statement directly and unambiguously contradicts the prior sworn testimony such that it could be considered a sham.²⁸

For instance, the plaintiff’s deposition testimony could reasonably be interpreted as the plaintiff testifying that she had never complained to a particular person that the plaintiff had suffered age discrimination. In the plaintiff’s summary judgment declaration, she testified that she had complained to that particular person about other people being discriminated against on account of race. The court of appeals held that the declaration testimony did not directly contradict the plaintiff’s testimony that she had never complained about her own discrimination, and therefore the district court erred in disregarding the declaration on summary judgment.²⁹

An affidavit that satisfactorily explains an apparent contradiction between the affidavit testimony and the prior sworn testimony should not be disregarded as a sham.³⁰ A non-moving party is not precluded from elaborating upon, explaining, or clarifying prior testimony elicited by opposing counsel at deposition, and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence are not grounds for excluding an affidavit.³¹

The sham affidavit doctrine should be applied with caution because it is in tension with the rule that the trial judge should not make credibility decisions or weigh the evidence in resolving summary judgment motions.³²

Declaration Contradicts Objective Evidence

A declaration statement that contradicts objective evidence such as an unambiguous videotape may not create a dispute of fact defeating summary judgment.³³

For example, the plaintiff’s summary judgment testimony that he was not fleeing from police and was not driving recklessly and therefore was not a threat did not create a “genuine” dispute of fact as to whether he posed a threat in a Section 1983 action where the plaintiff’s testimony was “blatantly contradicted” by videotape of the incident.³⁴

Self-Serving Declaration

A declaration may not be disregarded merely because it is self-serving.³⁵ Its self-serving nature bears on the weight to be given by the trier of fact and not whether on summary judgment the trial judge must draw all reasonable inferences from the declaration testimony.³⁶

Attorney Declaration or Affidavit

A declaration or affidavit from an attorney representing a party in the case must meet the same requirements as a declaration from any other witness.³⁷ Counsel rarely has the personal knowledge needed to properly testify to the facts in the case.³⁸

For instance, counsel’s declaration in opposition to summary judgment was not entitled to any weight because counsel lacked personal knowledge of the facts stated.³⁹

A party’s attorney generally cannot authenticate documents; instead, the authentication must be provided by a witness with personal knowledge.⁴⁰ However:

• An attorney can authenticate documents of which the attorney has personal knowledge, such as documents created by the attorney.⁴¹
• An attorney can also authenticate documents by attesting that the documents were produced by the opposing party in the litigation, provided the attorney has personal knowledge of such fact.
• An attorney cannot authenticate a deposition transcript even if the attorney was present at the deposition.⁴²

A party’s attorney can submit a declaration on certain matters:

• An attorney can offer testimony on matters of which the attorney has personal knowledge, such as interactions with opposing counsel.
• An attorney declaration can attach documents that are otherwise authenticated via stipulation or self-authentication or the documents’ distinct characteristics.⁴³
• An attorney declaration can attach documents about which the attorney has personal knowledge, such as the opposing party’s discovery responses or written communications with opposing counsel.

If a document’s authenticity is stipulated to or it is self-authenticating, say so in the declaration paragraph that identifies the document attached to the attorney declaration.

To read the full practice note in Lexis Practice Advisor, follow this link.

James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. See his full bio here: https://www.lexisnexis.com/en-us/practice-advisor-authors/profiles/james-wagstaffe.page.

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1. Fed. R. Civ. P. 56(c)(1)(A). 2. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). 3. Fed. R. Civ. P. 56(c)(3). 4. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015); see also Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (submissions by party opposing summary judgment need not themselves be in form admissible at trial, but party “must show that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists, and that a trial is necessary”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial”). 5. See Humphreys, 790 F.3d at 538-39. 6. Humphreys, 790 F.3d at 539. 7. Fed. R. Civ. P. 56(c)(4). 8. See Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013). 9. See Barthelemy v. Air Lines Pilots Ass’n, 897 F2d 999, 1018 (9th Cir. 1990). 10. Id. 11. See Block v. City of L.A., 253 F.3d 410, 419 (9th Cir 2001). 12. See, e.g., Josendis v. Wall to Wall Residence Repairs Inc., 662 F.3d 1292, 1317 (11th Cir. 2011); Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 282 (3d Cir. 1988). 13. Fed. R. Civ. P. 56(c)(4). 14. Celotex, 477 U.S. at 324. 15. See, e.g., Johnson v. Weld Cnty., 594 F.3d 1202, 1210 (10th Cir. 2010). 16. See Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 456 (1st Cir. 2016). 17. United States v. $92,203.00 in U. S. Currency, 537 F.3d 504 (5th Cir. 2008). 18. Fed. R. Civ. P. 56(c)(4). 19. Felkins v. City of Lakewood, 774 F.3d 647, 652 (10th Cir. 2014). 20. 28 U.S.C.S. § 1746; Fed. R. Civ. P. 56(c)(4); Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013);  see also Jajeh v. Cnty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012) (observing that Rule 56 no longer requires a formal affidavit); Fed. R. Civ. P. 56(c) advisory committee’s notes to 2010 amendment (same). 21. 28 U.S.C.S. § 1746(2). 22. See Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994). 23. Fed. R. Civ. P. 56(h). Rule 56(h) is little used. See Fed. R. Civ. P. 5 advisory committee’s notes to 2010 amendment (provision (h)). 24. Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251–52 (3d Cir. 2007). 25. Id. at 253-54. 26. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 577–78 (2d Cir. 1969). 27. Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055–56 (7th Cir. 2000). 28. Baker v. Silver Oak Senior Living Mgmt. Co., L.C., 581 F.3d 684, 690–91 (8th Cir. 2009); see also Markut v. Verizon N.Y. Inc. (In re World Trade Ctr. Lower Manhattan Disaster Site Litig.), 758 F.3d 202, 213 (2d Cir. 2014) (principle that parties may not create material issues of fact by submitting affidavits that dispute their own prior testimony does not apply if statements are not actually contradictory or later sworn assertions address issue not thoroughly or clearly explored in prior testimony). 29. Baker, 581 at 690–91. 30. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). 31. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998–99 (9th Cir. 2009). see also Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (if plausible explanation for discrepancies in party’s testimony exists, court should not disregard later testimony simply because earlier account was ambiguous, confusing, or incomplete). 32. See, e.g., Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015); Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). 33. Scott v. Harris, 550 U.S. 372, 379–81 (2007). 34. Id. 35. Widmar v. Sun Chem. Corp., 772 F.3d 457, 459–60 (7th Cir. 2014). 36. SEC v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). 37. Fed. R. Civ. P. 56(c)(4); 28 U.S.C.S. § 1746; SEC v. Smart, 678 F.3d 850, 856 (10th Cir. 2012). 38. See Eguia v. Tomkins, 756 F.2d 1130 & n.7 (5th Cir. 1985). 39. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412–13 (9th Cir. 1995). 40. See Pittman v. Inc. Vill. of Hempstead, 49 F. Supp. 3d 307, 311 (E.D.N.Y. 2014) (observing that despite the requirement that a declarant have personal knowledge of the matters stated, attorneys will often improperly submit summary judgment declarations for the purpose of introducing documents into the record). 41. Fed. R. Civ. P. 56(c)(4). 42. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). 43. Fed. R. Evid. 901.