By John Gause, Esq.

Published: Maine LAWYERS REVIEW, May 6, 2021

An easily overlooked footnote in a recent First Circuit employment discrimination decision gives us a glimpse of 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 the latter 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 idea—that 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 (before the 2010 Rule 56(c)(2) revision) 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 to make evidence admissible once.

Allowing us to skip this often painstaking legwork until trial will streamline discovery. In employment discrimination cases discovery is largely about getting past summary judgment, which has involved extensive efforts to reduce evidence to admissible form. For example, we ask for admissions authenticating text messages or emails, track down certified copies of public records, and recite the elements of business records during depositions. Under the prevailing view we could hold off on all that until later as long as we can show the ability to admit evidence at trial. We could save time and money that may never need to be spent because the vast majority of cases settle before trial.

While the Advisory Committee Note accompanying Rule 56(c)(2) requires us to “explain the admissible form that is anticipated,” 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, at summary judgment we should be able to rely on the contents of medical records without authenticating them, as long as we explain how we are going to authenticate them later; or hearsay testimony about what someone else said, as long as we explain that we will call the underlying witness at trial. 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 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, appellate courts have sometimes condoned lower courts taking the initiative to consider material 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.”

This would be a big change locally. It appears likely that the First Circuit will eventually join the widespread view that summary judgment material need not be submitted in an admissible form at summary judgment. When that happens we will save time and expense, as the Rules contemplate.