Concept

Admissibility Objections

Summary judgment motions

Admissibility Objections

Rule 56(c)(2) gives a party a way to challenge the other side’s evidence: 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.”¹ The objection fills a gap that citing the record leaves open. Rule 56(c)(1)(A) lists the materials a party may cite, but a listing does not make every discovery item count. Discovery material must be admissible under the rules of evidence before it is properly considered part of the summary judgment record, and Rule 56(c)(2) is the means of testing it.²

The reason for policing the record lies in what the motion does. A motion for summary judgment previews, usually in documentary form, the evidence the parties would put on at trial, so the court can decide whether that evidence would establish any dispute requiring a trial. Judge Posner frames the question for jury cases as “whether the state of the evidence is such that, if the case were tried tomorrow, the [non-moving party] would have a fair chance of obtaining a verdict.”³ A forecast built on evidence no jury could hear would mislead. Rule 56 exists to avoid unnecessary trials, and the motion could not do that work if courts considered evidence that could not later be admitted at trial.⁴

Because the preview is of the trial, the objection asks what a party could present there, not whether the paper handed to the court would itself be received. Affidavits and similar materials are not always admissible at trial themselves, but they show that a party has evidence that would be admissible. An affidavit by Hart describing the Central Park accident is a sworn statement based on personal knowledge. If the case went to trial, Hart could come into court and give the same testimony, so the affidavit shows that Hart has admissible evidence to support his claim.⁵

Celotex Corp. v. Catrett shows the principle at work. Mrs. Catrett opposed summary judgment with three documents: a transcript of a deposition of the decedent, a letter from an official of one of the decedent’s former employers, and a letter from an insurance company to her attorney. All tended to show that the decedent had been exposed to Celotex’s asbestos products in Chicago during 1970–1971, and Celotex argued that the documents were inadmissible hearsay that could not be considered.⁶ The Court answered that the nonmoving party need not produce evidence in a form that would be admissible at trial, that Rule 56 does not require her to depose her own witnesses, and that she could oppose the motion with any of the evidentiary materials the Rule lists other than the mere pleadings.⁷ Its reasoning was practical: excluding evidence in that form would force her to depose her own witness, when she might otherwise interview him informally and present him at trial.⁸ Rule 56(c)(2) keeps the same point in its wording, since the objection is that the material cannot be presented in admissible form, not that the form offered is not yet admissible.

The principle has a limit, and Justice White, concurring, marked it. A witness who testified only that he “guessed” that Celotex products were used at a job on which he worked would give testimony inadmissible as speculation not made on personal knowledge, and a witness who testified only that he “heard” the same thing would probably give inadmissible hearsay. Neither kind of testimony could create a genuine dispute.⁹

Hypothetical Illustration

Spinoza sues United, and United moves for summary judgment on the ground that its products were never used at his worksite. United’s only evidence is its sales manager’s statement that he “heard” one of Spinoza’s coworkers, whose name he has forgotten, “guess” that the crew had not used United products.¹⁰ On Justice White’s analysis, the statement fails twice over. The “guess” is speculation not made on personal knowledge, and the “heard” makes the sales manager a relay for what someone else said out of court. The forgotten name makes matters worse, because nothing identifies a witness who could repeat the statement at trial. The objection works against a movant just as it works against an opponent, since Rule 56(c)(2) reaches material cited to support a fact as well as material cited to dispute one.

The Advisory Committee’s 2010 note explains that “[t]he objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” If the proponent cannot, the court will not consider its evidence.¹¹

The allocation follows from who knows what. The party that cited an item knows which witness will stand behind it and what that witness can say, while the objector sees only the paper. Requiring the objector to prove that no admissible form could ever exist would ask it to prove a negative about evidence the other side holds. The duty to explain also keeps the flexibility recognized in Celotex from becoming a loophole, because otherwise a party could cite any hearsay letter and never say who would testify. And it makes the objection useful beyond the ruling: even when the court denies the motion, the exchange of information needed to decide it may help both parties shape their cases for trial,¹² and an objection forces the proponent to say how its evidence will come in.¹³

Hypothetical Illustration

In two separate cases, the opponent of a summary judgment motion cites an unsworn letter about the same kind of workplace exposure. The first letter is signed by a former supervisor, and when the movant objects, its proponent answers that the supervisor worked at the site during the relevant years and will testify at trial. The second letter is an unsigned note from someone its proponent cannot identify, and its proponent answers the same objection by saying only that the note is reliable. The court considers the first letter, because the proponent has explained how the facts will come in through a witness who can speak from personal knowledge. It disregards the second, because no identified person could give that testimony from the stand, and reliability is not the question the objection asks.

Labeling a statement hearsay therefore does not end the inquiry, because the question is whether the person behind it could give the same account from the witness stand. The objection also differs from an attack on credibility. The court does not weigh or assess the actual credibility of any witness on this motion; that is the jury’s role. A party who says a witness’s credibility is in question must introduce facts showing why, which typically means evidence that the witness is not disinterested (that is, is a party) or that the issue rests on the state of mind or motive of the actor and so ultimately turns on that person’s credibility. The court asks only whether there is reason to believe credibility may be determinative, and if there is, it denies summary judgment.¹⁴

The objection reaches evidence of fact offered in a court proceeding, and its edges are worth marking. A disagreement over the governing legal standard is a different kind of problem. Suppose lower courts split in a jail-suicide case between the Restatement’s duty and strict custodial liability. Whether that split about the applicable law precludes summary judgment is a preliminary question of law, separate from any objection to the form of the evidence.¹⁵ The objection also belongs to litigating in court. Parties who cannot settle may instead choose arbitration, one of the oldest and best-established alternatives to litigating in court.¹⁶

Exam Analysis Steps

Because the objection controls what the court counts before it asks whether a dispute is genuine, it is best run item by item. The steps are these:

Identify the fact the item is cited to support or dispute, and what kind of material it is, such as an affidavit, a deposition answer, or a document.
Set aside the form of the container, since an affidavit or letter need not itself be admissible at trial, and ask whether the testimony or document behind it could be presented in admissible form.
Test the content for the usual defects: a guess is speculation without personal knowledge, a secondhand report raises a hearsay problem, and an unidentified source leaves no one who could testify.
If an objection is made, require the proponent to show that the material is admissible as presented or to explain the admissible form anticipated at trial, and disregard the evidence if the proponent cannot.
Keep credibility separate: the court does not weigh it, and it denies summary judgment only if there is reason to believe credibility may be determinative.

Admissibility Objections

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