Federal Evidence Review

Tenth Circuit reverses summary judgment because trial court erred in concluding documents in opposition to the motion were unauthenticated; the documents produced during discovery on the letterhead of the plaintiff were “authentic per se”, in Law Co., Inc. v. Mohawk Const. and Supply Co., Inc., 577 F.3d 1164 (10th Cir. Aug. 17, 2009) (No. 08-3076)

Under the FRE, authentication is shown by proffering “evidence sufficient to support a finding that the matter in question is what its proponent claims” it to be. See FRE 901(a). One means of authentication is by showing that the proffered evidence shares “[d]istinctive characteristics and the like” such as “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” FRE 901(b)(4). The Tenth Circuit recently explained a means of authentication specifically applicable in summary judgment proceedings that draws upon these liberal standards for showing that something is “what its proponent claims.” In the Tenth Circuit case of Law Co., Inc. v. Mohawk Const. and Supply Co., Inc., the circumstance that the opponent had initially produced the proffered document in response to discovery provided grounds for sufficient authentication of the documents at issue.

In the case, general contractor Law sought a declaratory judgment that its subcontractor Mohawk could not collect damages for delay under their subcontract. Law’s prime contract involved constructing an aircraft service facility and it subcontracted with Mohawk for installation of metal wall panels, to begin on October 9, 2003 and finish by February 9, 2004. However, Mohawk did not complete its work on the project until November 2004. Mohawk alleged that it “it spent more than a year on a four-month job, in part because of Law’s failure to properly coordinate other subcontractors on the Project.” Mohawk maintained that it was entitled to damages it suffered in performing despite Law’s delays and Mohawk pursued this claim upon the project’s completion. Accordingly, Law sought a declaratory judgment that Mohawk was not entitled to delay damages under the contract.

After initial discovery, Law sought summary judgment. The trial court granted this motion, finding that Mohawk was entitled to no delay damages because there were no grounds for such damages under the relevant contract. Contrary to Mohawk’s contention, the contract had not been modified to allow for compensation for the delay. In coming to this conclusion the trial court “refused to consider many of the documents submitted by Mohawk because the documents were not supported by an authenticating affidavit. These documents had been provided to Mohawk by Law under [Fed. R. Civ. P. ] Rule 26, and many of them were written on Law letterhead.” Law, 577 F.3d at 1168.

The Tenth Circuit reversed the grant of summary judgment and remanded because the trial court erred in finding that the defendant’s documents, submitted in opposition to the motion for summary judgment, were not sufficiently authenticated. In doing so, the circuit discussed two classes of documents entitled to this liberal rule. It distinguished documents used by Mohawk that were produced by Law during discovery on Law’s letterhead from documents not on Law’s letterhead but that might be authenticated because their “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics” under the “circumstances” of being produced in discovery from Law suggested they were authentic under FRE 901(b)(4).

With regard to the documents gained in discovery from Law on Law’s letterhead, the circuit explained they were admissible because:

“documents produced during discovery that are on the letterhead of the opposing, producing party are authentic per se for purposes of Federal Rule of Evidence 901. Accordingly, the district court abused its discretion when it refused to consider numerous letters, facsimiles, and memoranda attached to Mohawk’s opposition that were printed on Law letterhead and produced by Law.”

Law, 577 F.3d at 1170 (citing Chavez v. Thomas & Betts Corp. , 396 F.3d 1088, 1101 (10th Cir. 2005) (“[C]ircumstantial evidence supports the authenticity of Exhibit 14 because T & B submitted it during discovery and it was on company letterhead.”), overruled on other grounds as recognized in Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006); Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991) (“documents provided during discovery, on defendant’s letterhead, [are] authentic under Fed. R. Evid. 901”) (internal citation omitted)).

The circuit found the trial court error was rooted in its insistence that it was essential to have an “affidavit to authenticate every document submitted for consideration at summary judgment.” This was erroneous because “[b]y the text of Rule [Fed. R. Civ. P.] 56, affidavits are merely one form of submission that can demonstrate a genuine issue of material fact. Because evidence must be admissible to be considered on summary judgment, the proper inquiry here is under Federal Rule of Evidence 901” that there be “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Law, 577 F.3d at 1170 (quoting FRE 901(a)).

“[N]o authenticating affidavit is required,” the circuit concluded. Law 577 F.3d at 1171 (citing Anderson v. Cramlet, 789 F.2d 840, 845 (10th Cir. 1986) (“Mr. Anderson argues that his letter to Phil Donahue and the transcript of the Phil Donahue Show were not properly supported by sworn affidavits as required by Rule 56(e) of the Federal Rules of Civil Procedure. Defendants obtained Mr. Anderson’s letter to Phil Donahue in a request for production of documents. It is therefore admissible under Rule 56(c).”). Applying these standards to the documents that Mohawk submitted in opposition to summary judgment that came from Law in discovery but were not on Law’s letterhead, the circuit concluded:

“Mohawk’s submitted exhibits might be sufficiently authenticated taking into consideration the ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,’ [FRE] 901(b)(4), even if they do not appear on Law letterhead. On remand, the district court should consider authentication of each document individually.”

Law, 577 F.3d at 1171 (quoting FRE 901(a)).

The Tenth Circuit is not alone in this ruling. Other circuits agree that documents obtained through discovery may be authenticated by admission of the party producing the document. However, these circuits in particular also add a requirement that the party against whom the documentary evidence is submitted not contest the authenticity of the proffered evidence. See, e.g., Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (In summary judgment proceeding, “[t]he district court did not err in considering the documents as indicators of MPI’s motivation, however; MPI produced the documents to GoodTimes, many of the documents were on MPI letterhead and MPI does not contest their authenticity.”); 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.”).