Admitting Summary Evidence Under FRE 1006

In affirming grant of summary judgment for defendant in disability discrimination suit, admitting the defendant's summary graphs that presented "a condensed presentation of [plaintiff]'s extensive record of work attendance," were admissible under FRE 1006 as the plaintiff had access to the underlying records used by the defendant and those records were independently admissible in evidence under an FRE hearsay exception, in Colón-Fontanez v. San Juan, __ F.3d __ (1st Cir. Oct. 12, 2011) (No. 10–1026)

The foundational conditions for the admission of summary evidence can be a fertile ground for evidence objections. The First Circuit recently considered a case that involved many of the issues that arise when seeking admission of summary evidence, such as the summary nature of the summary evidence, the availability of evidence that the summary is based upon, the opportunity the opposing party is provided to review the underlying evidence, whether the underlying evidence is admissible under the FER, and the foundation for the development of the summary evidence.

In the First Circuit case that originated from Puerto Rico, plaintiff municipal employee Colón sued the city she worked for (San Juan, Puerto Rico) contending that it had discriminated against her under federal and state disability discrimination laws. One important fact that was necessary to determination of her action was the extent of the plaintiff's attendance record at work and the state of her health problems.

In general, evidence presented to the court in support of the city's motion for summary judgment, suggested "Colón's attendance record throughout her employment consist[ed] of numerous days during which she either was tardy or altogether absent from work on account of medical appointments, illness, or personal matters." According to an undisputed "summary of Colón's attendance record" on a yearly basis during nearly two decades of work for the city, as her tenure lengthened, her absences "became more and more frequent" and ranged from 19% a year to 59% a year and often without providing prior notice to the city. On the other hand, supervisors at work acknowledged her deficient attendance record, but rated her performance of duties when she was there as generally "excellent."

In pretrial proceedings, the trial judge granted the defendant city's motion for summary judgment. In part, the grant was based on use by the court of "statements, charts, and computerized reports that had been prepared by a paralegal belonging to the law firm representing" the defendant city. This summary "consisted of a condensed presentation of Colón's extensive record of work attendance over her near two-decade period of employment." Based on evidence of this sort, the trial judge concluded that there was not issue of material fact in dispute and that the facts rendered judgment for the defendant appropriate. The plaintiff appealed, contending in part that the trial judge erred by admitting a defense exhibit that purported to summarize the plaintiff's work attendance record.

The First Circuit affirmed the trial court's grant of summary judgment to the defendant city. The circuit concluded the summary exhibits clearly fit within the parameters of FRE 1006, which allowed for admission of “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” FRE 1006. In making this determination, the circuit examined the a set of considerations:

  • First, the summary charts and graphs at issue consisted of a condensed presentation of Colón's extensive record of work attendance over her two-decade period of employment. This was "an appropriate presentation of 'voluminous writings' that 'cannot conveniently be examined in court,'" as required by FRE 1006.
  • Second, the summaries were "based" on other evidence that was "admissible in evidence." Here, the summary was based on evidence admissible under the business record hearsay exception of FRE 803(6). It "consisted of attendance records kept in the course of the Municipality's regularly conducted business, according to a regular procedure, and for a routine business purpose." Colón-Fontanez, __ F.3d at __ (citing United States v. Davis, 261 F.3d 1, 42 n.37 (1st Cir. 2001) (noting that for summary evidence to be admissible, the materials on which it is based also must be admissible in evidence)
  • Third, the material upon which the summary graphs had been based had been "produced to Colón during the discovery process."
  • Fourth, the defendant had laid an "appropriate foundation to the charts." The circuit dismissed as unfounded the defense contention that a foundation had not been "properly laid because the individual who prepared the charts (i) was never announced as a witness in the case, (ii) prepared the charts in anticipation of litigation, and (iii) was a paralegal who lacked the requisite expertise to testify in support of their admission."
Colón-Fontanez, __ F.3d at __ .


The third and fourth factors were significant enough to prompt the circuit to expand on its reasoning in particular detail.

Prior Production Of The Evidence That Was Summarized

The circuit went to particular lengths to explain the requirement of producing the evidence upon which the summary was based did not included the summary evidence itself. Rather, the prevailing interpretation was that

Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. See Fed.R.Evid. 1006 (“The originals [of the contents of the writings], or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.”). The circuits recognize this well-settled principle. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 7 & n.14 (1st Cir. 1996); United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991) (“The language of [Rule 1006] ... simply requires that the [original voluminous] material be made available to the other party.”); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985) (Rule 1006 requires that “only the underlying documents, and not the summaries, must be made available to the opposing party”).
In light of this authority the Circuit cast the defendant's challenge to the production of the data summarized to be "incorrect: the Municipality had no obligation to provide the charts to Colón," rather than access to the underlying evidence that was being summarized. Colón-Fontanez, __ F.3d at __ . Colón-Fontanez, __ F.3d at __ .

Foundation Of The Summary Chart

The circuit was particularly unpersuaded by the plaintiff's contention regarding the foundation for the summary, part of which the circuit characterized as based on "non-starters." The circuit's examination of the trial record belied the plaintiff's contentions. The notice of the witness who constructed the summary chart was "ample" as to the paralegal's "identity and position, her role in relation to the chart preparation, and the likelihood that she could serve as a witness at trial." Colón-Fontanez, __ F.3d at __ . In addition, the source of the summary had been adequately noted by the district court at trial as:

the district court specifically acknowledged that the summary charts were prepared in anticipation of litigation, and factored this into its consideration, stating:'The Court understands that the summary materials were prepared by the Municipality's counsel for trial purposes and will consider the credibility and weight of the prepared attendance charts and graphs with due knowledge of that and of the fact that the paralegal worked only with the documents available to her. For that reason, the Court views the percentages of attendance as approximations.'"
Colón-Fontanez, __ F.3d at __ (citing Kestenbaum v. Falstaff Brewing Corp., 575 F.2d 564, 575-76 (5th Cir. 1978) (court rejected defendant's objection to summary exhibits on grounds that they had been prepared in anticipation of litigation because summary was offered under and complied with Fed. R. Evid. 1006 and underlying records were made available to opposing counsel)).

As to the foundation for the summary exhibit, the circuit's discussion was instructive:

[F]or summary evidence to be admitted into court, there must be, like all evidence, a proper foundation laid for its admission. In the context of a summary exhibit, the proponent of the exhibit "should present the testimony of the witness who supervised its preparation." United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998). Here, the Municipality offered the testimony of the paralegal who prepared the exhibits summarizing Colón's attendance record. The fact that the paralegal could testify as to her method of preparing and summarizing the exhibits does not an instant expert of her make. Moreover, the fact that she was a paralegal employed by defendants' counsel, and not by the Municipality itself, does not, in this case, affect the admissibility of the charts.

Further, Colón's argument that the paralegal was not qualified to review and analyze Colón's attendance records holds little force. As the district court noted, "[t]he sworn statement of the paralegal who prepared the summary charts and graphs goes into great detail about the documents relied upon and methodology used to develop the materials submitted to the Court." Colón offers no argument or explanation as to what qualifications or expertise should have been required of the preparer of her attendance record charts, nor does she ever contest the content of the summary charts. We thus fail to see how the district court's admission of the paralegal's summary charts constituted an abuse of discretion warranting reversal.
Colón-Fontanez, __ F.3d at __ (citing Fraser v. Major League Soccer, LLC, 284 F.3d 47, 67 (1st Cir. 2002) (noting that "[i]t is hard to imagine an issue on which a trial judge enjoys more discretion than as to whether summary exhibits will be helpful"); United States v. Milkiewicz, 470 F.3d 390, 401 (1st Cir. 2006) (finding no merit to appellant's argument that witness who prepared summary exhibits lacked the expertise to summarize the financial information represented in the charts, and noting that "creating summaries of the data took patience but not expertise"); S.E.C. v. Franklin, 265 F. App'x 644, 646 (9th Cir. 2008) (finding "no error in allowing the preparer of the [summary exhibits] to testify because no expert opinions or conclusions were offered") (citation omitted); Caballero, 277 F.3d at 1247 (noting that witnesses who "summarized business records and client lists and presented them in condensed form . . . expressed neither a lay nor an expert opinion").

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