Opinion
ORDER RE: OBJECTIONS TO EVIDENCE SUBMITTED ON SUMMARY JUDGMENT
ELIZABETH LAPORTE, Magistrate Judge.
In connection with Defendant's Motion for Summary Judgment, each party filed objections to the other party's evidence. In the Court's Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment, the Court did not cite to or rely on many of the exhibits to which each party objected. Therefore, to the extent that any objections are not addressed specifically in this Order, they are overruled as moot. The Court issues the following Order regarding the remaining objections.
1. PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EVIDENCE
A. Exhibit C to Cheng Decl. - Primary Inspection Computer Screen
Plaintiff's hearsay and authentication objections are overruled.
Authentication is a condition precedent to admissibility of evidence for summary judgment. See Fed. R. Evid. 901(a). Although attorney Cheng is not competent to authenticate this document, Defendant also submitted the portion of Officer Scaletti's deposition in which Officer Scaletti authenticated the document. The standard for authentication is a flexible one in which the proponent of the evidence need not prove beyond any doubt that the document is authenticate; rather, the standard is one of reasonable likelihood. See Federal Civil Trials and Evidence, at § 8:429.
To the extent that the document is hearsay, it would fall within hearsay exceptions for present sense impression (Fed. R. Evid. 803(1)), public records (Fed. R. Evid. 803(8)) and records of regularly conducted activity (Fed. R. Evid. 803(6)).
B. Exhibit D to Cheng Decl. - Sworn Statement
Plaintiff's hearsay and authentication objections are overruled.
As with exhibit C, attorney Cheng is not competent to authenticate this exhibit, but Inspector Enriquez authenticated the exhibit in his declaration and the exhibit is also attached to his declaration. Plaintiff contends that she did not voluntarily sign the document and that she did not make the statements made therein, but these issues go to the weight of the evidence rather than the admissibility.
To the extent that the statements made in the sworn statement are admissions of a party opponent, they are not hearsay. See Fed. R. Evid. 801(d)(2). Plaintiff argues that she did not make the statements, but that is an issue for trial, not for admissibility on summary judgment. Further, to the extent the document is hearsay, it falls within hearsay exceptions for records of regularly conducted activities (Fed. R. Evid. 803(6)) and public records (Fed. R. Evid. 803(8)).
C. Exhibit E to the Cheng Decl. - 2/8/01 Visa application
Plaintiff's hearsay and relevance objections are overruled.
The document is relevant to Plaintiff's admissibility.
To the extent that the statements were made by Plaintiff in writing or orally to a government official who wrote them down, the statements are admissions of a party opponent and therefore not hearsay. See Fed. R. Evid. 801(d)(2). Also, to the extent that the documents contain hearsay, they would be excluded from the hearsay rule as public records (Fed. R. Evid. 803(8)) or records of regularly conducted activities (Fed. R. Evid. 803(6)). Plaintiff argues that the document contains "substantial irregularities" and should be excluded on that basis. However, this objection goes to the weight of the evidence, rather than its admissibility on summary judgment.
D. Exhibit G to Cheng Decl. - Plaintiff's deposition excerpts
Plaintiff's relevance objection to excerpt 95:1-5 because it does not support the claim by Defendant for which it is cited is overruled. The testimony concerns Plaintiff's statement that Enriquez threatened her with jail. The fact that it may or may not support Defendant's claim is a question of weight, not of admissibility.
2. DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EVIDENCE
A. Objections to all sealed documents not served on Defendant
Defendant contends that the sealed documents attached to the opposition to the motion were not served on Defendant and should therefore be excluded. Plaintiff responds that Defendant has these documents, either because the documents were produced by Defendant in this litigation or because Plaintiff provided copies.
Defendant's objection is overruled.
B. Objections to all documents attached to supplemental Hapiuk Decl.
Defendant contends that all exhibits attached to the supplemental Hapiuk declaration should be excluded as untimely. Plaintiff says that the supplemental exhibits were timely filed.
The parties agreed in a stipulation that Plaintiff's opposition, along with supporting documents, would be filed on November 12, 2004. The supplemental Hapiuk declaration was filed on November 16, 2004. Defendant, however, has failed to demonstrate prejudice arising from the late filing. Therefore, Defendant's timeliness objection is overruled.
C. Exhibit K to Hapiuk Decl. - blank Form I-867A&B
Defendant's objection that this exhibit is not authenticated is overruled. The same document was authenticated by Defendant as an exhibit to Linda Loveless's declaration. Both parties rely on Form I-867A&B in their briefs.
D. Exhibit AA to Hapiuk Decl. - Memo re: letter of complaint re: Plaintiff
Defendant's authentication and hearsay objections are overruled.
Although attorney Hapiuk is not competent to authenticate this document, Plaintiff also submitted the portion of Mr. Karr's deposition in which he authenticated the document. See Hapiuk Decl. Ex. C at 192:14-22.
The document contains admissions of a party-opponent and therefore it is not hearsay. See Fed. R. Evid. 801(d)(2).
3. PLAINTIFF'S OBJECTIONS TO DEFENDANT'S REPLY EVIDENCE
A. Exhibit A to Enriquez Decl. - Sworn Statement by Plaintiff
Plaintiff's authentication objection is overruled. Officer Enriquez authenticated the document through his declaration. Plaintiff simply does not believe Officer Enriquez' statements, but that is not a proper evidentiary objection.
IT IS SO ORDERED.