First Circuit Holds That District Court Erred in Striking Summary Judgment Exhibits on Authentication Grounds

In Joseph v. Lincare, Inc., No. 20-1396 (1st Cir. Mar. 2, 2021), the panel vacates summary judgment in a race discrimination employment case. It holds that the district court erroneously excluded important exhibits filed by the plaintiff, produced by the defendants in discovery, on spurious authentication grounds.

During Joseph’s brief tenure as a sales representative at Lincare, he alleges that he experienced spoken and unspoken racial prejudice and retaliation. As is typical in nearly all employment-discrimination litigation, Lincare moved for summary judgment at the close of discovery. It contended that Joseph was fired for entirely performance-based reasons having nothing to do with race or retaliation. In opposition to the motion, Joseph offered exhibits—documents produced by Lincare in discovery—to raise a genuine dispute of material fact about whether the company’s reasons for firing him were pretextual, contradicting the company’s defense in court.

The district court ultimately excluded four of plaintiff’s exhibits and granted summary judgment: “The district court ruled that the documents to which Lincare objected – [division manager] Filo-Loos’ handwritten notes of a meeting she had with [Joseph’s direct supervisor] Lizotte on March 28, 2017, Filo-Loos’ letter to Adams dated August 21, 2017, and the May 27, 2017, e-mail exchange between Filo-Loos and [head of human resources] Adams – constituted inadmissible ‘unauthenticated and hearsay evidence’ …. Hence, it excluded these documents from the summary judgment record …. The court additionally excluded on the same grounds a fourth document – Lizotte’s statement to Adams dated August 25, 2017 — to which Lincare had not objected.”

The First Circuit reverses the evidentiary ruling and vacates summary judgment. Addressing the evidentiary issue first, the panel flags for future consideration the intra-circuit split about whether exhibits for summary judgment must be authenticated at all. Because the parties “agree that the evidence must be authenticated … [w]e need not pass judgment on the correctness of their interpretation of Rule 56’s admissibility requirement, which has not been briefed by the parties.”

The panel then finds that the documents were sufficiently authenticated for purposes of Fed. R. Evid. 901 by the fact that they were produced by the defendant in discovery and that the defendant had not, heretofore, suggested that there was anything questionable about them. Indeed, in the case of the August 25 document that the district court struck sua sponte, “the document’s authenticity was independently established during Lizotte’s deposition, where he testified that he had authored the statement at Adams’ request, and discussed its content.”

As a general matter, the panel holds, the remaining documents had sufficient indicia of authentication. “One document is on Lincare letterhead, a second is a printout from the email system with the Lincare logo, and the third consists of handwritten notes captioned ‘Notes of Tarrah Filo Loos from conversation with Dennis Lizotte, Area Manager.’ In producing these documents, Lincare offered no caveat suggesting they might be other than what they appear to be. To this day, Lincare has never claimed they are not authentic.”

The panel criticizes the hyper-technical approach to authentication advocated by the defendant. “Discovery is expensive enough without adding make-work. When a party in response to discovery requests points to a document that appears on its face to be a business record of the producing party, the other parties should be able to treat the document as authentic unless someone offers some reason to think otherwise, before it is too late to do something about it …. Here, when Joseph sought to use the documents as being what they appeared to be, Lincare never offered any suggestion that it had produced unauthentic documents. Rather, it simply played ‘gotcha,’ waiting until discovery was over to challenge authenticity by arguing that Joseph had failed to obtain an express admission of authentication by Lincare of its employees who created the documents. In rewarding this gambit, the district court erred.”

Finally, the panel holds the exclusion of the exhibits to be not harmless, and thus reversible, because they “help push Joseph’s case over the summary judgment hurdle.” The panel rules that Joseph “has just enough evidence, as supplemented by the improperly excluded documents, to warrant a trial.”

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