United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
Plaintiff filed a Motion to Strike , arguing that the Court should strike numerous exhibits to Defendant's Motion for Summary Judgment  and Defendant's response  to Plaintiff's Motion for Summary Judgment.
For the reasons stated below, the Motion to Strike  is granted in part and denied in part. The Court grants the Motion to Strike as to the following exhibits, which the Court shall not consider when addressing the pending dispositive motions: Exhibit B [119-2], Exhibit J [119-10], Exhibit P [119-16], Exhibit Q [119-17], Exhibit R [119-18], Exhibit T [119-20], Exhibit Y [119-25], Exhibit II [119-35], and Exhibit JJ [119-36]. The Court denies the Motion to Strike with respect to Exhibit H [119-8], Exhibit K [119-11], and Exhibit DD [119-30].
A. Rule 56(c)
Defendant argues that Rule 56 merely requires that the facts alleged in the motion are capable of being presented in an admissible form at trial, regardless of whether they have been presented in an admissible form at the summary judgment stage. In Defendant's words: "It is the possibility of admissibility that determines whether facts can be considered at summary judgment, not whether the admissibility of the underlying exhibits has been affirmatively proven by Allstate." Defendant apparently contends that it does not have to present admissible evidence at the summary judgment stage, and that the Court must accept its assurance that it could do so at trial when it has not done so on summary judgment.
This argument is nonsense. Rule 56(c) provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
FED. R. CIV. P. 56(c)(1). However, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." FED. R. CIV. P. 56(c)(2). Therefore, "only materials which were included in the pretrial record and that would have been admissible evidence may be considered." Stults v. Conoco, 76 F.3d 651, 654-55 (5th Cir. 1996); see also Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir. 2000). In other words, "[t]he admissibility of evidence [at summary judgment] is subject to the same standards and rules that govern the admissibility of evidence at trial." Rushing v. Kansas City S. Ry., 185 F.3d 496, 504 (5th Cir. 1999); see also Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) ("Evidence inadmissible at trial cannot be used to avoid summary judgment.").
B. Specific Exhibits
1. Exhibit B [119-2]
Exhibit B is a copy of Defendant's claim history report. Among other things, Plaintiff argues that Defendant failed to properly authenticate it. Documents submitted as summary judgment evidence must be authenticated. Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991). "The standard for authentication is not a burdensome one." United States v. Davis, 754 F.3d 278, 281 (5th Cir. 2014). "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." FED. R. EVID. 901(a). To be admissible, the proponent must only make a " prima facie showing of authenticity, " as "the ultimate issue of authenticity is a question for the jury." United States v. Alejandro, 354 F.Appx. 124, 128 (5th Cir. 2009) (citing United States v. Guidry, 406 F.3d 314, 320 (5th Cir. 2005)). Rule 901 only requires "some competent evidence in the record to support authentication." United States v. Wake, 948 F.2d 1422, 1434 (5th Cir. 1991).
Defendant failed to address Plaintiff's authentication argument. It failed to lay a proper foundation for the exhibit, direct the Court to any record evidence showing that the exhibit is what Defendant claims it to be,  or offer any argument that it is self-authenticating. Therefore, the Court grants Plaintiff's Motion to Strike with respect to Exhibit B [119-2] to Defendant's Motion for Summary Judgment. See Stults, 76 F.3d at 654-55 (only evidence in the record that would be admissible at trial may be considered on summary judgment); Howard v. Director, ...