United States District Court, N.D. California, San Francisco Division
THOMAS E. SMITH, Plaintiff,
STEVEN HARRINGTON, PhD, et al., Defendants.
ORDER (1) REGARDING DEFENDANTS' OBJECTIONS TO PLAINTIFF'S EVIDENCE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND (2) CONTINUING THE MOTION HEARING
LAUREL BEELER, Magistrate Judge.
In support of his opposition to Defendants' motion for summary judgment, Plaintiff Thomas Smith filed three declarations: (1) the declaration of Plaintiff Thomas Smith (ECF No. 94-5); (2) the declaration of Kathleen Smith (ECF No. 94-3), who purportedly represented Mr. Smith during the dependency proceedings concerning his daughter; and (3) the declaration of Thomas Moore (ECF No. 94-4), Mr. Smith's attorney in this action. Defendants object to the court considering the declaration of Kathleen Smith and some of the documents (including the expert report of Renee Lamborn) that are attached to the declaration of Mr. Moore. The court discusses Defendants' objections in turn below.
I. THE COURT WILL ALLOW MR. SMITH TO TRY TO PROPERLY AUTHENTICATE THE EXHIBITS ATTACHED TO THE DECLARATION OF THOMAS MOORE
Defendants first object to the admissibility of some of the exhibits that are attached to the declaration of Thomas Moore. (Reply, ECF No. 96 at 5.) In the first paragraph of the declaration, Mr. Moore declares that if called as a witness he "could and would competently testify to the following facts based upon my personal knowledge." (Moore Decl., ¶ 1, ECF No. 94-4 at 2.) In the subsequent paragraphs, however, he does not testify to any substantive facts relevant to this case. Instead, he states that each of the 38 exhibits that are attached to his declaration (Exs. O-ZZ) are "true and correct" copies of those exhibits. Many of the exhibits appear to be email communications among Defendants or documents produced by or sent to Defendants. These are the exhibits (Exs. O through QQ) to which Defendants object.
The Ninth Circuit has explained the authentication requirements at the summary judgment stage:
A trial court can only consider admissible evidence in ruling on a motion for summary judgment. See Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Authentication is a "condition precedent to admissibility, " and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment. See Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene, 854 F.2d at 1182; Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976).
In a summary judgment motion, documents authenticated through personal knowledge must be "attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Canada, 831 F.2d at 925 (citation omitted). However, a proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902. See Fed.R.Evid. 901(b)(providing ten approaches to authentication); Fed.R.Evid. 902 (self-authenticating documents need no extrinsic foundation).
Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002) (footnotes omitted); see Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011) (following Orr ).
Mr. Moore's declaration does not meet these requirements. "A document can be authenticated [under Rule 901(b)(1)] by a witness who wrote it, signed it, used it, or saw others do so.'" Orr, 285 F.3d at 774 n.8 (quoting 31 Wright & Gold, Federal Practice & Procedure: Evidence § 7106, 43 (2000)). Even though Mr. Moore attempts to authenticate the exhibits under Federal Rule of Evidence 901(b)(1) based on his personal knowledge, it does not appear that any of the exhibits are ones that he wrote, signed, used, or saw others write, sign, or use. For example, he did not write or receive any of the emails that are attached as exhibits; in most instances, Defendants or other school personnel did. When this is the case, a declaration stating that the exhibits are true and correct copies does not properly authenticate the exhibits. See id. at 777 ("The memo identifies both the author [Geerhart] and recipient and contains a signature next to their names. However, it lacks foundation because Orr has failed to submit an affidavit from Geerhart stating that he wrote the memo. Mirch's affidavit does not lay a foundation for Exhibit C. Mirch neither wrote the memo nor witnessed Geerhart do so, and he is not familiar with Geerhart's signature.") (citations omitted); see also Cal. Prac. Guide: Fed. Civ. P. before Trial § 14:170.5 (The Rutter Group 2014) ("Documents obtained in discovery may not be considered unless authenticated by appropriate affidavit or declaration: [D]ocuments do not automatically become a part of the record simply because they are the products of discovery.'") (quoting Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d 9, 15 (1st Cir. 2006); id. at § 14:181.7).
The question, then, is what to do about this problem. The court's review of opinions from this Circuit suggests that, although it does not have to, see Hunt v. Turner, 4 Fed.Appx. 434, 435 (9th Cir. 2001), the court may in its discretion allow Mr. Smith an opportunity to properly authenticate Exhibits O through QQ. See Semaan v. IGT, 126 Fed.Appx. 794, 795-96 (9th Cir. 2005) (noting that the defendant cured its initial failure to verify exhibits in support of its summary judgment motion and ruling that the district court's consideration of the exhibits did not constitute prejudicial error); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1551 (9th Cir. 1989) (finding a district's court's consideration of an improperly authenticated document to be harmless where the document was later properly authenticated by a declaration submitted with a motion for reconsideration); cf. Carson Harbor Village, Ltd. v. County of Los Angeles, 433 F.3d 1260, 1263 n.3 (9th Cir. 2006) ("The district court was not required to consider the late-submitted declarations and it did not abuse its discretion by refusing to do so."); Saroyan Lumber Co., Inc. v. El & El Prods. Corp., 8 Fed.Appx. 832, 833-34 (9th Cir. 2001) ("district court did not abuse its discretion by denying Saroyan's [Rule] 56(f) request for a continuance" of the discovery deadline to allow it "to obtain a declaration that would authenticate its evidence, rendering it admissible"). At least one court in this district has allowed a party opposing summary judgment to file supplementary declarations to properly authenticate evidence. See Memry Corp. v. Kentucky Oil Tech., N.V., No. C-04-03843 RMW, 2006 WL 3734384 at *5-6 (N.D. Cal. Dec. 18, 2006) ("The court recognizes that KOT's evidentiary insufficiency is a somewhat technical one and to allow summary judgment because of it seems unduly harsh. Therefore, the court will give KOT until January 10, 2007 to cure the deficiency. STC and Memry can object to any supplementation within five days after any supplementation by KOT. Absent an adequate cure, summary judgment will be entered on the third counterclaim for trade secret misappropriation.").
The court believes that exercising its discretion to allow Mr. Smith an opportunity to properly authenticate the exhibits that are attached to Mr. Moore's declaration is the right course of action, especially when it is likely that the exhibits could be properly authenticated. See Orr, 285 F.3d at 774 ("[A] proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902.") (citing Fed.R.Evid. 901(b) (providing ten approaches to authentication); Fed.R.Evid. 902 (self-authenticating documents need no extrinsic foundation)); cf. id. at 777 (discovery documents could not "be authenticated by way of production in discovery because Mirch has not identified who produced them, and BOA has not admitted to having produced them") (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (documents produced by a party in discovery were deemed authentic when offered by the party-opponent); Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988) ("Whittaker's witnesses acknowledged that Underwood was a senior employee of the design department, and Whittaker produced the Underwood notes during discovery. The district court did not err in accepting these facts as adequate authentication, particularly since Whittaker has never claimed that the notes were not Underwood's."); 31 Federal Practice & Procedure: Evidence § 7105, at 39 ("Authentication can also be accomplished through judicial admissions such as... production of items in response to... [a] discovery request.")).
Accordingly, the court will allow Mr. Smith until February 13, 2015 to try to properly authenticate Exhibits O through QQ to Mr. Moore's declaration. The court makes clear, though, that this is not an opportunity to submit any new exhibits that were not attached to Mr. Moore's declaration. Defendants shall have until February 17, 2015 to object (if they so choose) to Mr. Smith's attempt at proper authentication. The court also encourages the parties to meet and confer to reach a stipulation regarding the authenticity of documents that are capable of easy authentication.
II. THE COURT WILL NOT CONSIDER THE DECLARATION OF KATHLEEN SMITH
Defendants also object to the declaration of Kathleen Smith. (Reply, ECF No. 96 at 6.) They say that her declaration, in which she discusses what happened during the dependency proceedings and explains the juvenile dependency process under California law, reads at times like an expert declaration and at other times like a declaration of a percipient witness. Defendants argue that, under either interpretation, the declaration should be excluded because Mr. Smith never disclosed Kathleen Smith in his initial disclosures as an individual likely to have discoverable information that he was going to use to support his claims or defenses, see Supp. Widen Decl., Ex. VV (Ms. Smith's initial disclosures), ECF No. 96-1 at 13-21, and also never disclosed her as an expert witness, see id., Ex. TT (Mr. Smith's expert disclosure) & Ex. UU (Mr. Smith's supplemental expert disclosure), ECF No. 96-1 at 4-6, ...