OPINION AND ORDER

ANNA J. BROWN, United States District Judge

This matter comes before the Court on Defendants' Amended Motion for Summary Judgment (#28) and Plaintiff's Motion to Strike Affidavit and Exhibits (#34) from Defendants' Motion for Summary Judgment.

For the reasons that follow, the Court GRANTS Plaintiff's Motion to Strike and DENIES Defendants' Amended Motion for Summary Judgment.

STANDARDS

Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001) (internal quotation and citation omitted). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C. Ret. Plan Trust, 258 F.3d 986, 999 (9th Cir. 2001), cert. denied, 122 S.Ct. 815 (2002). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir. 1990). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998) (citation omitted).

The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). If the resolution of a factual dispute would not affect the outcome of the claim, the Court may grant summary judgment. Arpin, 261 F.3d at 919.

When considering the merits of a summary judgment motion, a trial court may consider only admissible evidence. Orr v. Bank of America, NT SA, 285 F.3d 764, 773 (9th Cir. 2002). Authentication is a condition precedent to admissibility. Id.

To authenticate documents that are submitted to support or to oppose a summary judgment motion through personal knowledge, the party must attach the documents to the affidavit of a person through whom the exhibits could be admitted into evidence at trial. Id. The affiant must show affirmatively he has personal knowledge and "is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).

PLAINTIFF'S MOTION TO STRIKE Background

In support of Defendants' Motion for Summary Judgment, Defendants offered only the Affidavit of their attorney, Christopher L. Neal (Original Neal Affidavit). Neal testified as follows:

I am an attorney for defendants in this matter. I have personal knowledge of the facts recited herein, and if called as a witness could and would competently testify thereto.

Attached to the Original Neal Affidavit were eight exhibits. Neal listed each of the attached exhibits by Bates-stamp number and briefly described certain exhibits as follows:

Exhibit 2: a computerized records [sic] of Hewlett Packard of March 6, 1998.

Exhibit 3: the Summary Plan Description for the group life insurance policy.

Exhibit 4: the Hewlett Packard Group Term Life Insurance Policy.

* * *

Exhibit 6: a computerized records [sic] of Hewlett Packard of November 30, 1998.

In addition, Neal testified neither Plaintiff nor her deceased husband returned the group life insurance policy to Defendant Connecticut General Life Insurance Company (CGLIC).

Plaintiff filed a Motion to Strike the Original Neal Affidavit because it is not based on personal knowledge and Neal fails to lay a proper foundation for the admissibility of the accompanying exhibits. In particular, Plaintiff moves the Court to strike Exhibits 2, 3, 4, and 6 because they would be inadmissible at trial as unauthenticated, hearsay evidence in the form offered by Neal. Plaintiff further argues the documents that Neal identifies as the Group Term Life Insurance Policy (Exhibit 4) and the Summary of that policy (Exhibit 3) do not appear on their faces to be the proper documents.

In response to Plaintiff's Motion to Strike, Defendants moved the Court for leave to file the Supplemental Affidavit of Christopher L. Neal (Supplemental Neal Affidavit). On April 30, 2002, the Court granted that Motion. The Supplemental Neal Affidavit mirrored the Original Neal Affidavit except Neal added the words "true and correct copy" to each of his descriptions of the exhibits and he also included the following paragraph:

I certify that each Exhibit identified herein is a true and correct copy of the original document as maintained in Connecticut General Life Insurance Company's claims file relating to Plaintiff's claim. The documents found in the claims file were made at or near the time identified in them, were kept in the regular course of business, and were made or received as part of the administration of Plaintiff's claim as a regular practice of Connecticut General Life Insurance Company.

Defendants then filed a Motion for Leave to File the Second Supplemental Affidavit of Christopher L. Neal (Second Supplemental Neal Affidavit), which the Court granted on May 31, 2002. Attached to the Second Supplemental Neal Affidavit was a document identified as "Hewlett Packard's Group Term Life Summary Plan Description for the 1998 period at issue in this matter." In their Memorandum in Support of the Motion for Leave to File the Second Supplemental Neal Affidavit, Defendants explained they had located the appropriate plan document even though "the original document was equally valid." Thus, it appears Exhibit 3 to the Original Neal Affidavit was not the document it was supposed to be.

Defendants also filed a formal Response to Plaintiff's Motion to Strike in which they contended Plaintiffs' Motion was moot because the Court had granted Defendants leave to file the Supplemental Neal Affidavit. Defendants argued the Supplemental Neal Affidavit provided the foundation for the authenticity of the exhibits and their admissibility under the business records exception to the hearsay rule. See Fed.R.Evid. 803(6). In addition, Defendants argued Plaintiff's concerns about the authenticity of Exhibits 3 and 4, the Policy and the Summary of the Plan, were moot because Neal attached a full copy of the appropriate Summary Plan Description to the Second Supplemental Neal Affidavit. The Second Supplemental Neal Affidavit, however, did not have a copy of the relevant policy attached. Moreover, the Court had not yet granted Defendants leave to file the Second Supplemental Neal Affidavit when Defendants filed their Response to Plaintiff's Motion to Strike.

In Plaintiff's Reply, she contends none of the various Neal affidavits have cured the deficiencies of the Original Neal Affidavit.

Discussion

"A writing is not authenticated simply by attaching it to an affidavit. . . ." United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). In order to lay the foundation for receipt of a document in evidence, the party offering the exhibit must provide the "testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document and, where appropriate, its delivery." Id. In other words, the affiant must state specific facts from which the court could infer the affiant could identify correctly the document and knows the attachment is a true and correct copy of the genuine document. Id.

Although Neal conclusorily alleges he has personal knowledge as to the authenticity of the documents attached to his affidavits, he provides no factual support. Defendants, nonetheless, argue the Court may infer Neal's personal knowledge that the exhibits are authentic from the fact that he is Defendants' attorney of record and is acting as their agent.

An attorney's affidavit is treated like all other affidavits pursuant to Rule 56(e) and is not sufficient unless it is based on personal knowledge. Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 225 (8th Cir. 1990). The court, however, may infer an affiant has the requisite personal knowledge and competence to testify by considering the affiant's position or participation in the matters at hand. See Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990). Attorneys generally participate in and, therefore, have personal knowledge of only those matters that occurred during the course of litigation such as when and where a deposition took place. Under most circumstances, an attorney has no personal knowledge of and is not competent to testify to the authenticity of documents generated before the litigation began or merely produced by his client. In other words, an attorney cannot acquire personal knowledge based on hearsay from his client. See Dibble, 429 F.2d at 602 (testimony that an affiant works with or for someone who has personal knowledge of the authenticity of a document does not establish the affiant also has the requisite personal knowledge to authenticate it).

The Original Neal Affidavit also contained a single "fact" in addition to his statements that introduced and attempted to authenticate the exhibits attached. In paragraph 10, Neal testified, "During his lifetime, neither Mr. Blount nor Plaintiff returned the converted policy to CGLIC." Neal offers no basis for his purported personal knowledge of this "fact" in any of his affidavits.

Based on the foregoing, the Court concludes it cannot infer solely from Neal's status as Defendants' counsel of record that Neal personally can attest to the authenticity of Exhibits 2, 3, 4, or 6 to the Original Neal Affidavit or to the authenticity of Exhibit 1 to the Second Supplemental Neal Affidavit. Moreover, Neal has not alleged any other facts from which the Court could conclude he has the requisite personal knowledge. Accordingly, the Court concludes Defendants failed to authenticate these exhibits.

Even if the documents were authenticated by a competent witness, however, Defendants concede the challenged exhibits are hearsay evidence offered for the truth of the matters asserted within them. See Fed.R.Evid. 801(c). Defendants argue the challenged exhibits are admissible, nonetheless, pursuant to the business records exception. See Fed.R.Evid. 803(6). Business records are admissible under Rule 803(6) if the following foundational facts are proved by a qualified witness: 1) the records were made by a person with knowledge at or near the time of the incident, and 2) the records were kept in the course of regularly-conducted business. United States v. Arias-Villanueva, 998 F.2d 1491, 1503 (9th Cir.), cert. denied, 510 U.S. 1001 (1993). A qualified witness is the custodian or preparer of the business records or any other person who understands and has personal knowledge of the business's record-keeping system. United States v. Ray, 930 F.2d 1368, 1371 (9th Cir. 1991), cert. denied, 498 U.S. 1124 (1991).

Neal has not alleged sufficient facts to show he is qualified to testify to the record-keeping practices of his client, and the Court finds it cannot infer solely from Neal's position as Defendants' attorney of record that he would be intimately familiar with such practices. Accordingly, the Court finds the challenged exhibits are inadmissible hearsay evidence.

Based on the foregoing, the Court strikes Exhibits 2, 3, 4, and 6 to the Original Neal Affidavit and Exhibit 1 to the Second Supplemental Neal Affidavit as unauthenticated, hearsay evidence. The Court also strikes those portions of the Affidavits that introduce and describe those documents.

Finally, the Court strikes Paragraph 10 of the Original Neal Affidavit for lack of foundation and failure to show personal knowledge of the fact contained in that Paragraph.

Accordingly, the Court limits its review of Defendants' Amended Motion for Summary Judgment to those facts supported by Exhibits 1, 5, 7, and 8 to the Original Neal Affidavit and Plaintiff's own submissions.

DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT Undisputed Material Facts

The following facts are undisputed unless otherwise indicated: Plaintiff's husband, LaMarice Blount, was an employee of Hewlett-Packard in Wilsonville, Oregon, from 1995 until he became totally disabled due to terminal lung cancer in 1998.

As a Hewlett-Packard employee, Mr. Blount received various benefits from his employer, including group life insurance, disability insurance, and health insurance. On November 16, 1995, Mr. Blount applied for group life insurance, and shortly thereafter Defendants issued Group Term Life Insurance Policy number 2403458 (Group Policy) to Mr. Blount. The Group Policy contained a $50,000 benefit, and Mr. Blount named Plaintiff as the beneficiary. Hewlett-Packard paid the insurance premiums on the Group Policy until Mr. Blount's death.

In 1997, Mr. Blount developed terminal lung cancer. While Mr. Blount underwent chemotherapy and radiation treatment, he was placed on temporary disability. He continued to work for Hewlett-Packard between treatments. Eventually, Mr. Blount became permanently disabled and could no longer work. His last day of work with Hewlett-Packard was May 5, 1998. At that time, Hewlett-Packard offered him an Individual Whole Life Insurance Policy (Individual Policy) underwritten by Defendant CGLIC. On July 14, 1998, Mr. Blount applied for the Individual Policy, and shortly thereafter Defendants issued Policy number 070010162 to Mr. Blount. The Individual Policy also contained a death benefit of $50,000. Mr. Blount named Plaintiff as the beneficiary. Pursuant to the Individual Policy, Mr. Blount had to pay Defendant CGLIC quarterly premiums of $337.29.

Although it was very difficult for Plaintiff and Mr. Blount to make the insurance payments on their fixed disability income, they made eleven quarterly payments on the Individual Policy over the next 33 months. Their payments totaled $3,710.19. The premiums on the Individual Policy were current at the time of Mr. Blount's death.

Plaintiff and Mr. Blount "were led to believe" that Defendants would pay the benefits under both the Group Policy and the Individual Policy when Mr. Blount died. Plaintiff and Mr. Blount relied on these representations and expected Plaintiff would receive a total life insurance benefit of $100,000. Because Plaintiff anticipated receipt of $100,000 in life insurance proceeds, she did not make other financial arrangements or seek other insurance. She expected to make regular payments, including mortgage payments on her two houses, car payments, utility bills, and other living expenses, with the proceeds from both policies. Her financial security after Mr. Blount's death depended on these proceeds. After Mr. Blount's death, Plaintiff contacted Hewlett-Packard regarding the Group Policy, and Hewlett-Packard filed a claim with Defendants for payment of the insurance proceeds on that policy. Defendants promptly paid Plaintiff the $50,000 benefit under the Group Policy.

Plaintiff also filed a claim with Defendants for payment under the Individual Policy. On February 12, 2001, Defendants refunded the excess premium due under the Individual Policy for the period from Mr. Blount's death until the next quarterly payment was due. In late February, Defendants orally informed Plaintiff they had made an error and would not pay her benefits under the Individual Policy. On March 6, 2001, Defendants sent Plaintiff a check in the amount of $3,597.76 as a refund of all premiums she and Mr. Blount had paid under the Individual Policy. Defendants refused to pay Plaintiff's claim under the Individual Policy.

Discussion

Defendants move for summary judgment on all of Plaintiff's claims on the grounds that Plaintiff's state law claims are preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. In particular, Defendants argue Plaintiff's right to recover depends entirely on an employee benefit plan (the Plan), the terms of which clearly and unambiguously establish that Defendants have paid the full benefit due to Plaintiff. Defendants, however, have failed to establish the terms of the alleged Plan. Defendants, therefore, have not shown the Plan is in any way implicated by Plaintiff's state law claims arising under the Individual Policy, which does not reference an ERISA plan. In addition, Defendants have failed to show Plaintiff is not entitled to recover under the Individual Policy because of the terms of the alleged Plan.

On the current record, the Court, therefore, cannot determine whether ERISA preempts Plaintiff's claims. Accordingly, the Court finds Defendants have failed to establish they are entitled to summary judgment.

CONCLUSION

For these reasons, the Court GRANTS Plaintiff's Motion to Strike (#34) and DENIES Defendants' Amended Motion for Summary Judgment (#28).

IT IS SO ORDERED.