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What Evidence Can You Use at Summary Judgment?

John McNichols and Kristen A DeWilde


  • The evidentiary standards at summary judgment are not the same as those that govern at trial.
  • Failing to recognize the difference has consequences, including lost credibility.
  • Summary judgment usually involves extensive briefing and a well-developed evidentiary record.
What Evidence Can You Use at Summary Judgment?
Viesturs Davidcuks via Getty Images

Experienced litigators know that not all cases are made equal for summary judgment. Summary judgment is appropriate only when the facts sit comfortably on one side of a critical, case-dispositive issue, and even with all reasonable inferences drawn in your opponent’s favor, the record creates no genuine fact dispute material to determining a claim, or a defense, as a matter of law.

Despite the apparent simplicity of the standard, summary judgment is rarely open-and-shut, and usually involves extensive briefing and a well-developed evidentiary record. Complicating things more—but underemphasized by most practitioners—is that the evidentiary standards at summary judgment are not the same as those that govern at trial. Failing to recognize the difference has consequences, including distorted views of your client’s odds at the summary judgment stage, and losses in credibility with the court. Here’s a brief overview of what practitioners should know to give themselves—and their clients—the best chance to prevail at the summary judgment stage.

Let’s begin with the standards for admissibility at trial. In federal court, the Federal Rules of Evidence govern. Evidence is admissible if it meets the Federal Rules of Evidence standards of relevance, authentication, and the like—but if not, not. While most evidentiary ruling are made during trial—i.e., as evidence is being taken, based on the court’s then-current understanding of the issues and evidentiary record—courts are allowed (but not required) to make certain evidentiary rulings in advance of trial through the well-known mechanism of the motion in limine. Whether made before or during trial, a court’s rulings on the admissibility of evidence are governed by Rule 104, which states, among other things, that the court’s rulings need not be bound by the rules of evidence. In all events, however, the court’s ruling is necessarily one about the admissibility of evidence, i.e., an up-or-down vote as to whether it is in or out.

Surprisingly, that is not what a court is called on to decide when reviewing the evidence at summary judgment despite that discovery has likely closed, the record is static, and you sit only a few steps away from moving in limine. Under the new standard promulgated by the 2010 amendments to Federal Rule of Civil Procedure 56(c), a court can consider any materials in the record at summary judgment unless it “cannot be presented in a form that would be admissible in evidence.” Essentially, a court can rely on evidence at summary judgment if it is capable of being put into admissible form at trial.

How does this work in practice? Say you move for summary judgment, relying on only the record evidence that you think is admissible at trial to conclude all the facts sit comfortably on your side. Your opponent responds, attaching an unauthenticated document that creates a material factual dispute. Just like you would at trial, you can reply and object to the evidence. Note, the 2010 advisory committee notes make clear that your objection does not need to filed as a separate “motion to strike,” but always check your local rules. Your opponent then gets a chance to prove that the document is capable of being authenticated at trial.

On the one hand, this standard makes sense. Cases should not be thrown out at summary judgment if a quick Q&A with a witness at trial could add the evidentiary bells and whistles to otherwise admissible evidence.

On the other hand, this can result in endless speculation for litigators attempting to determine whether summary judgment is appropriate on the record as it stands. After all, how capable is capable? Is it a mere possibility, a plausibility, or a more-likely-than-not?

Lack of authentication and certain kinds of hearsay can present the most difficult issues here. Deposition testimony may not, for example, sufficiently establish a business records hearsay exception for a given document, which under Federal Rule of Evidence 803(6) requires a showing that the document was made during an organization’s regularly conducted activity by someone with personal knowledge. It then rests solely within the discretion of the district court to determine if a party is capable of bringing additional testimony out at trial that would establish the hearsay exception. Take, for example, Jacoby v. Keers (No. 17-13400, 779 Fed. Appx. 676 (11th Cir. 2019) (per curiam). The Eleventh Circuit held that that it was within a district court’s discretion at summary judgment to consider documents containing hearsay and to accept the explanation provided by the proponents that a business records hearsay exception could be established at trial.

Unsurprisingly, district courts reach different conclusions depending on the parties, the briefing, and the record in front of them. In Fox v. Trident Asset Management (No. 8:17-cv-1370-T-36MAP, 2018 U.S. Dist. LEXIS 118314), the Middle District of Florida overruled objections to unauthenticated and hearsay evidence because the defendant only argued that the evidence was not in admissible form—not that the evidence could not be presented in admissible form. But in BN Farm LLC v. Cincinnati Cas. Co. (No. 20-10874-MBB, 2021 U.S. Dist. LEXIS 212150), the District of Massachusetts sustained a defendant’s objection that additional documents should not be considered at summary judgment on the grounds that they were unauthenticated.

So, what does this mean for litigators? Remember your audience, and do not burn trees without looking at the forest first. Summary judgment motions and the exhibits attached to them are heavy lifts for courts to sort through, and they will likely not appreciate being handed additional reading assignments on objections that do not seem to matter to the question presented or that focus on inadmissible evidence that can be easily cured with supplemental filings. If you recognize evidence in inadmissible form at summary judgment, object only when (1) that evidence is outcome determinative to your client’s position at this stage; and (2) you have no reason to believe it could be put into admissible form at trial. And if you’re on the receiving end of an evidentiary objection at summary judgment? Don’t forget that it’s not game over if you haven’t completed your evidentiary ABCs yet. Respond, and explain, that the inadmissible evidence is curable.

As Judge Hamilton recently wrote in Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018), it is always important to remember that “[n]either the rules of evidence nor the rules of civil procedure require lawyers or judges to raise all available evidentiary objections.”

 All views expressed herein are their own.