” Tillery v. Borden, No. CIV.A. CBD-07-1092, 2010 WL 2132226, at *2 (D. Md. May 25, 2010).
“For a court to accurately determine whether there is a factual dispute for a jury, the judge must be assured that the evidence [s]he examines at summary judgment is as authentic as that which the jury will consider.” Tillery v. Borden, No. CIV.A. CBD-07-1092, 2010 WL 2132226, at *2 (D. Md. May 25, 2010).
Further, this quote to a deposition is wholly unauthenticated, and the state court could not simply assume the document was authentic. See Tillery v. Borden, No. CIV.A. CBD-07-1092, 2010 WL 2132226, at *2 (D. Md. May 25, 2010) ("In summary judgment the parties submit materials which create a record; it is on that record only, that the Court rules on summary judgment. In the present case, the Court has no record on which to adjudge summary judgment.
But, "[i]t is clear that evidence not in a form admissible may nonetheless be considered in summary judgment." Tillery v. Borden, CBD-07-1092, 2010 WL 2132226, at *4 (D. Md. May 25, 2010) (internal citation omitted). In this case, PenFed has submitted the Dorn Declaration (ECF 24-1), in which Dorn attests to the authenticity of the agreements attached to the Motion.
Rule 901(b)(1) explicitly provides that a document may be authenticated by "testimony of a witness with knowledge" and affidavits have long been recognized as a "permissible form of authentication at summary judgment." Tillery v. Borden, 2010 WL 2132226 at *4 (D. Md. May 25, 2010).Pronin v. Vining, No. 5:13-cv-03423-DCN, 2016 WL 1253182, at *4-5 (D.S.C. Mar. 31, 2016).
" Id. Rule 901(b)(1) explicitly provides that a document may be authenticated by "testimony of a witness with knowledge," and affidavits have long been recognized as a "permissible form of authentication at summary judgment." Tillery v. Borden, 2010 WL 2132226, at *4 (D. Md. May 25, 2010). Defendants appear to suggest that Pronin cannot authenticate the staff requests through his own declarations or testimony.
In the Fourth Circuit, a court may not consider unauthenticated, unsworn documents on a motion for summary judgment. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993); see generally Sook Yoon v. Sebelius, No. 08-3173, 2010 WL 4293513 (D. Md. Nov. 1, 2010); Tillery v. Borden, No. 07-1092, 2010 WL 2132226 (D. Md. May 25, 2010). Rule 56 is not unduly rigid— evidence appropriate for summary judgment need not be in a form that would be admissible at trial.
Such a verification is of questionable probative value. See Tillery v. Borden, No. CBD-07-1092, 2010 WL 3517015, at *3 (D.Md. Sept. 3, 2010) (refusing to consider a complaint verified in such a manner on summary judgment). Because Sall fails to establish irreparable harm, there is no need for discussion on the other three parts of the preliminary injunction standard.
Neither the Complaint [DE-1] nor the Answer [DE-8] is sworn. Indeed, the Joint Record contains little, if any, "evidence" of the nature and quality upon which a fact-finder generally would be required to render a verdict. The court construes the parties' stipulation in this case to be an admission of the authenticity of documentary materials contained in the administrative record, see Lewis v. Draper City, ___ F. Supp. 2d ___, No. 2:09-CV-589-TC, 2010 WL 3791404, slip op. at *4 n. 3 (D. Utah Sept. 22, 2010); Tillery v. Borden, No. CIV.A. CBD-07-1092, 2010 WL 2132226 (D. Md. May 25, 2010), and of the fact that neither party can (or wishes to) produce anything else to support its position. The absence of competent evidence upon which to base a summary judgment ruling has not, however, hindered other courts in this context, and the undersigned will not belabor the point.But see Jama Investments, L.L.C. v. Incorporated County of Los Alamos, No. CIV 04-1173 JB/ACT, 2006 WL 1228771, slip op. at *12 (D.N.M. Feb. 16, 2006) (UP) (concluding that the district court "may consider any evidence that the parties submit so long as that evidence conforms to the Federal Rules of Evidence; its review of the Defendants' actions are not circumscribed by what occurred in the legislative proceedings before this lawsuit commenced); see Evans v. UDR, Inc., 644 F. Supp. 2d 675, 677, n. 3 (E.D.N.C. 2009) (noting that an unsworn affidavit presented on motion for summary judgment in an FHA "reasonable accommodation" case not treated as sworn testimony).