United States District Court, N.D. Mississippi, Oxford Division
M. BROWN, UNITED STATES DISTRICT JUDGE
25, 2019, Alita Mitchell and Craig Cheatham filed a
“Motion to Exclude Witness and Exhibits at
Trial.” Doc. #191. The motion requests the exclusion
of (1) certain summaries of bank records that Ava Mitchell
Tanner and Phyllis Fernandez intend to use at trial and (2)
Erica Patton, who generated the summaries, as a witness at
trial. Id. at 1, 2. Mitchell and Cheatham argue the
summaries and Patton should be excluded at trial because they
were not disclosed during discovery. Id. at 2.
and Fernandez respond that the summaries are of voluminous
bank records produced in discovery months ago, that Patton
prepared the summaries, and that the only purpose of
Patton's testimony is to authenticate the accuracy of the
summaries. Doc. #194.
Rule of Evidence 1006 provides that a party “may use a
summary, chart, or calculation to prove the content of
voluminous writings … that cannot be conveniently
examined in court.” Rule 1006 summaries “need not
have been produced during discovery.” Mitchell v.
University of La. Sys., 154 F.Supp.3d 364, 380 n.8 (M.D.
La. 2015) (citation omitted). Rather, Rule 1006 requires only
that “[t]he proponent must make the originals or
duplicates available for examination or copying, or both, by
other parties at a reasonable time and place.” See
Lovo v. Express Courier Int'l, Inc., No.
4:16-CV-853, 2018 WL 6573132, at *1 (N.D. Tex. Oct. 24, 2018)
(“Rule 1006 requires only that the underlying documents
upon which a summary is based be produced within a reasonable
time and does not require that the summary be produced during
discovery.”); 31 Victor James Gold, Federal Practice
and Procedure § 8045 (1st ed. 2015) (“Rule 1006
provides that only the underlying documents, not the
summaries themselves, must be produced to the opposing
party.”) (citation omitted). Because there appears to
be no dispute that the underlying bank records were produced
during discovery, the motion to exclude the summaries based
on a failure to produce them during discovery will be denied.
the authenticating witness Patton, “Rule 1006 is
‘a special exception to the hearsay rule,' and does
not require an authenticating witness.” Right of
Way Maint. Co. v. Gyro-Trac Inc., 303 Fed.Appx. 229, 230
(5th Cir. 2008) (quoting Jack B. Weinstein & Margaret A.
Berger, Weinstein's Federal Evidence § 1006.05
(Joseph M. McLaughlin ed., 2d ed. 2007)). Rule 1006 summaries
are admissible at trial when
(1) they are based on competent evidence already before the
[fact-finder], (2) the primary evidence used to construct the
charts is available to the other side for comparison so that
the correctness of the summary may be tested, (3) the chart
preparer is available for cross-examination, and (4) the
[fact-finder] is properly instructed concerning use of the
United States v. Spalding, 894 F.3d 173, 185 (5th
Cir. 2018) (quoting United States v. Bishop, 264
F.3d 535, 547 (5th Cir. 2001)). Accordingly, the request to
exclude Patton will be denied. Patton need not be called as a
witness to authenticate the summaries but she must be
available for cross-examination if the summaries are offered
reasons discussed above, the motion to exclude  is
 In violation of the Court's local
rules, Mitchell and Cheatham included legal arguments and
citations to case law in their motion, and failed to file a
supporting memorandum brief. See L.U. Civ. R.
7(b)(2), 7(b)(2)(B). The response to the motion is not
accompanied by a memorandum brief either. Counsel is warned
that continued failure to comply with the Court's
procedural rules may result in sanctions and/or the denial of
 All references and cites in this order
are to No. 3:16-cv-70, the lead case in these consolidated
 The exhibits at issue are P-81, P-83,
P-84, and P-86, which were included in a proposed pretrial
order submitted in No. 3:18-cv-23 before these ...