By John Gause, Esq.

Published: Maine LAWYERS REVIEW, May 6, 2021

An easily overlooked footnote in a recent First Circuit employment discrimination decision portends a major change in summary judgment proceedings. Local lawyers and judges have been operating under the understanding that record material must be submitted in a form that would be admissible at trial for it to be considered at summary judgment. It turns out that a contrary rule hiding in plain sight has been recognized throughout the rest of the country.

Granted, the First Circuit’s decision did not change anything just yet. Rather, in Joseph v. Lincare, Inc., decided March 2nd, the court noted that the parties and the lower court had all agreed that Federal Rule of Civil Procedure 56 requires parties to cite materials that would be admissible at trial and focused their attention on whether plaintiff’s documents had been properly authenticated. The court therefore said it “need not pass on the correctness of their interpretation of Rule 56’s admissibility requirement.”

It dropped a footnote there, though, that compared two of its earlier decisions—one stating that unauthenticated documents “are inadmissible at the summary judgment stage” and the other calling it “black-letter law that hearsay cannot be considered on summary judgment for the truth of the matter asserted”—with Fifth and Eleventh Circuit decisions saying the opposite. According to those decisions, unauthenticated documents and hearsay may be considered at summary judgment if the proponent explains how they would be offered in an admissible form at trial.

In the Fifth Circuit decision, Maurer v. Independence Town, the court relied on a 2010 revision to Rule 56 to support its conclusion that “evidence need not be authenticated or otherwise presented in an admissible form” at summary judgment. The 2010 revision created Rule 56(c)(2), which states that a party may object that material cited by another party to support or dispute a fact “cannot be presented in a form that would be admissible in evidence.” That provision led the Fifth Circuit to conclude that “materials cited to support or dispute a fact need only be capable of being presented in a form that would be admissible in evidence.”

In the Eleventh Circuit decision, Jones v. UPS Ground Freight, the court noted that “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial [and 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.”

This approach—inadmissible record material may be used to support or dispute material facts at summary judgment if it is capable of being made admissible at trial—is actually not new. In its footnote, the First Circuit in Lincare quoted the following sentence from a 1986 United States Supreme Court decision, Celotex Corp. v. Catrett: “We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”

It has also garnered widespread support outside of the First Circuit. In addition to the Fifth and Eleventh Circuits, all other Circuit Courts of Appeals to decide the issue (the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth) have similarly held that the material used to support or oppose a motion for summary judgment need only be capable of being admissible at trial regardless of its form at summary judgment.

In Maurer, the Fifth Circuit explained why this makes sense: “This flexibility allows the court to consider the evidence that would likely be admitted at trial—as summary judgment is trying to determine if the evidence admitted at trial would allow a jury to find in favor of the nonmovant—without imposing on parties the time and expense it takes to authenticate everything in the record.” In other words, we should only have to do the legwork once.

Allowing us to skip making everything admissible at summary judgment will streamline discovery. In employment discrimination cases, discovery is largely about getting past summary judgment, and doing that has required dotting i’s and crossing t’s to avoid the “gotcha” moment of not having a critical piece of evidence in admissible form when the motion is filed. For example, we have needed to obtain admissions authenticating text messages or emails, secure certified copies of public records, and walk through the elements of business records during depositions, all for the sake of surviving a technicality. If the prevailing view is adopted, we will no longer need to check those boxes before summary judgment as long as we can show that we have the ability to do so at trial. That will save us time and money that may never need to be spent because the vast majority of cases settle before trial.

Of course, the proponent of inadmissible record material does have to show that it can be made admissible at trial to survive a Rule 56(c)(2) objection. The Advisory Committee Note accompanying the Rule states that, upon objection by an opposing party, the offering party has the burden of showing that the material is either admissible as presented or “explain the admissible form that is anticipated.” But doing so should not be overly burdensome or complicated. As the Eleventh Circuit pointed out in Jones v. UPS Ground Freight, it can be as simple as stating that the hearsay declarant will be called to testify at trial. Both the Second Circuit, in Lee v. Offshore Logistical and Transport, LLC, and the Fifth Circuit, in Fraternal Order of Police, Lodge 1 v. City of Camden, found reversible error when lower courts refused to consider plaintiffs’ arguments that inadmissible hearsay would be rendered admissible at trial by calling the declarants to testify.

Under the prevailing view, for example, we should be able to rely on the contents of a medical report or medical records alone, or our client’s testimony about what a witness told her the boss said, provided we assure the court in responding to a Rule 56(c)(2) objection that the appropriate witness will be called to testify to the contents or statements at trial or we adequately explain how we will otherwise establish their admissibility. But that may not stop us from doing more than is necessary. In Humphreys & Partners Architects, L.P., v. Lessard Design, Inc., et al., the Fourth Circuit held that the lower court properly considered the contents of expert reports where the proponent submitted declarations by the experts made under penalty of perjury that they would testify to the matters in their reports. The court was quick to add, however, that it was not saying such declarations were necessary, only that there had been enough of a showing for the lower court to consider the reports.

While it is the proponents’ burden (upon objection) to explain how the material will be made admissible at trial, and courts are generally under no obligation to do the work for them, appellate courts have sometimes condoned lower courts taking it upon themselves to consider material that they decide will likely be made admissible later even absent such an argument from the proponent. The Fifth Circuit in Sherman v. Irwin, for example, found it harmless error for the lower court to consider material that it sua sponte found “would likely be admissible under the business-records exception to hearsay” because the opposing party had not claimed she had “any additional evidence or wasn’t granted a similar allowance.” In an unreported Second Circuit decision, Selvam v. Experian Information Solutions, Inc., the court even found it was error for the lower court not to consider bank records offered by a pro se plaintiff because, although not argued by plaintiff, they “would almost certainly fall within the hearsay exception for business records, Fed.R.Evid. 803(6), and thus would be available at trial.”

There will certainly be times when courts draw the line on what to allow. For example, in the Eleventh Circuit Jones case, despite endorsing the view that hearsay can be considered at summary judgment, the court ended up rejecting hearsay statements that directly contradicted plaintiff’s deposition testimony. Plaintiff had testified at his deposition that there was only a single racial remark made in his presence but sought to support his hostile work environment claim at summary judgment with an email from somebody saying plaintiff had “said they make racial remarks to him all the time.” The court rejected that effort.

Still, this would be a big change. And it does appear likely that the First Circuit will eventually join the other circuits in holding that summary judgment material need not be submitted in an admissible form at summary judgment. It doing so will save us all time and expense, which is how the Rules are to be construed.