Recently, we successfully defeated three separate motions to strike.[1] The first motion centered on an exhibit that was attached to a declaration. This dispute started with opposing counsel challenging the declaration’s credibility during meet and confer conversations and ended with them filing a motion to strike that reframed their credibility dispute as thinly veiled issues of authentication and admissibility. The second motion took issue with another declaration, claiming it was a “sham affidavit.” In the third and final motion, filed days before the summary judgment hearing, opposing counsel sought to strike supplemental facts and exhibits we introduced in reply to new allegations they first pled during summary judgment, including new fraud claims. At the summary judgment hearing, we prevailed against all three motions to strike. Litigators should know that motions to strike on summary judgment are no longer proper and instead, the proper procedure is to respond to the disputed facts or file an objection to the document. Below are some of the mistakes opposing counsel made, and how you can avoid making them yourself.
Prior to 2010, motions to strike were flying back and forth all the time. In 2010, Federal Rules of Civil Procedure Rule 56 was amended to put an end to this practice by specifically adding Subdivision (c)(2): “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.”[2] The Committee Notes on Rules clarified the intent of this addition:
Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The 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. There is no need to make a separate motion to strike.[3]
Under the amended Rule 56, challenging the authenticity of a document is almost always a waste of everyone’s time. In our recent case, opposing counsel attempted to reframe their credibility dispute as an issue of authentication and admissibility. However, courts across the country have already recognized the impact of the 2010 amendment to Fed. R. Civ. P. 56, holding that a motion to strike is no longer the appropriate means to challenge the admissibility of summary judgment evidence.[4] Instead, the challenging party must make an objection under Fed. R. Civ. P. 56(c)(2) that the material cited to support or dispute a fact is presented in a form that would not be admissible evidence at trial.[5] While the burden is on the proponent of the evidence, that burden presents a low bar to clear:
At summary judgment, supporting material need not be submitted in a form admissible in evidence but the proponent must show that the evidence is susceptible to being presented in such a form. Therefore, where a party objects to proffered evidence for want of authentication, the proponent of the evidence need not in fact authenticate the evidence. Rather, the proponent must merely show that the material is admissible as presented or explain the admissible form that is anticipated for trial.[6]
Put more simply, all a party has to do to keep evidence in the summary judgment record is make a showing that they have a witness who (1) will be able to authenticate the disputed evidence; and (2) can testify to the disputed exhibit at trial in an admissible form.
The other mistake litigators commonly make is to assume any affidavit introduced to support or oppose summary judgment is a “sham affidavit”. The sham affidavit rule allows an affidavit or declaration submitted with a summary judgment motion to be stricken if a party is attempting to survive summary judgment by creating a genuine issue of material fact through submitting an affidavit that contradicts their prior statements.[7] However, this rule is narrow and “only triggered when the affidavit clearly contradicts prior testimony.”[8] A clearly contradictory affidavit does not, on its own, make it invalid.[9] Rather, such an affidavit is only stricken when no “satisfactory explanation” for the change in testimony is provided.[10] The United States Supreme Court has aptly summarized this rule, as used with “virtual unanimity” by lower courts:
A party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition without explaining the contradiction or attempting to resolve the disparity.[11]
The sham affidavit rule does not apply to statements that are consistent with deposition testimony[12] or if the statements clarify previously provided ambiguous testimony.[13] To be a true sham affidavit, it has to contradict prior testimony with no support for why the testimony has changed. For example, if a party testified that they signed a contract in May of 2024, but then submits an affidavit saying it was signed in June of 2024, that affidavit is not automatically a sham just because it conflicts with their prior testimony. If they can instead explain why the testimony has changed, such as by presenting the signed contract dated June of 2024, then the sham affidavit rule would not apply. When the sham affidavit rule does not apply, the issue becomes one of credibility, which cannot be decided on a motion to strike.[14]
The purpose of a motion to strike is not to challenge the admissibility nor credibility of evidence at summary judgment.[15] Instead, the “scope of motions to strike is limited to challenging documents not in compliance with the Federal Rules of Civil Procedure.”[16] This proposition was illustrated nicely in the District of Massachusetts case of Wilber v. Curtis, where, for example, the plaintiff moved to strike a fact on summary judgment on the basis that the fact repeated incorrect information provided by an incompetent witness.[17] The Wilber court succinctly denied plaintiff’s motion to strike, holding that although plaintiff “seeks to discredit the defendants’ statement, this is not a basis for striking it.”[18]
All of this is to say that motions to strike on summary judgment are not only improper under the Federal Rules of Civil Procedure but are also an inefficient and counterproductive use of resources. The 2010 amendments to Rule 56 clarified that admissibility challenges should be raised through objections rather than separate motions, reflecting a shift toward a streamlined and focused pretrial process. Misusing motions to strike to contest credibility or admissibility wastes valuable time and risks unfavorable rulings. By understanding and adhering to these procedural guidelines, parties can avoid unnecessary disputes, preserve judicial resources, and maintain a respected reputation with the court.
If you have been sued or are looking to start a lawsuit, please contact the experienced litigators at Eckland & Blando LLP.
[1] Research and drafting assistance provided by Lindsey Broda, law clerk at Eckland & Blando LLP.
[2] Compare Fed. R. Civ. P. 56 (Jan. 1, 2010) with Fed. R. Civ. P. 56(c)(2).
[3] Fed. R. Civ. P. 56, Committee Notes on Rules—2010 Amendment (emphasis added).
[4] Suzuki v. Abiomed, Inc., No. CV 16-12214-DJC, 2019 WL 109340, at *7 (D. Mass. Jan. 4, 2019), aff’d, 943 F.3d 555 (1st Cir. 2019) (citing OFI Int’l, Inc. v. Port Newark Refrigerated Warehouse, No. 2:11-CV-06376 WJM, 2015 WL 140134, at *1 (D.N.J. Jan. 12, 2015)); Bergus v. Florian, No. CV 18-10323-DPW, 2022 WL 7670168, at *1 n.1 (D. Mass. Oct. 13, 2022) (citing OFI Int’l, Inc., 2015 WL 140134, at *1); Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 418 n.11 (1st Cir. 2017); OFI Int’l, Inc., 2015 WL 140134, at *1 (“Following the 2010 amendments to Rule 56, a motion to strike is no longer a proper means of attacking the admissibility of summary judgment evidence.”) (citing Ankney v. Wakefield, No. CIV.A. 10-1290, 2012 WL 1633803, at *1 (W.D. Pa. May 8, 2012)); Ankney, 2012 WL 1633803, at *1 (“But after the 2010 amendments to Federal Rule of Civil Procedure (‘Rule’) 56, it is no longer appropriate to attack the admissibility of summary judgment evidence by way of a motion to strike.”); Smith v. Interim HealthCare of Cincinnati, Inc., No. 1:10-CV-582, 2011 WL 6012971, at *4 (S.D. Ohio Dec. 2, 2011) (“motions to strike are no longer appropriate under the 2010 amendments to Rule 56”); Cutting Underwater Techs. USA, Inc. v. Con-Dive, LLC, No. CIV.A. 09-387, 2011 WL 1103679 (E.D. La. Mar. 22, 2011); Reed v. Austal, U.S.A., L.L.C., No. CIV.A. 08-00155-KD-N, 2011 WL 4435562, at *5 n.6 (S.D. Ala. Sept. 23, 2011); In re World Health Jets LLC, 610 B.R. 118, 135 (Bankr. S.D. Miss. 2019).
[5] Fed. R. Civ. P. 56(c)(2).
[6] Diaz v. City of Somerville, 583 F. Supp. 3d 296, 302 (D. Mass. 2022) (cleaned up), aff’d, 59 F.4th 24 (1st Cir. 2023); see also Garcia-Garcia, 878 F.3d at 481 n.11 (“This rule was amended in 2010; . . . ‘authentication’ is no longer required under the rule.”)
[7] Armstrong v. White Winston Select Asset Funds, LLC, 647 F. Supp. 3d 36, 40 (D. Mass. 2022).
[8] Id.; (see also Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002) (an affidavit that “merely explains, or amplifies upon, opaque testimony” should be considered); Mahan v. Bos. Water & Sewer Comm’n, 179 F.R.D. 49, 55 (D. Mass. 1998) (“the inquiry for this Court is whether her post-deposition affidavit contradicts her deposition testimony or whether the affidavit clarifies or augments the deposition”); Pena v. Honeywell Int’l, Inc., 923 F.3d 18, 30 (1st Cir. 2019).
[9] Armstrong, 647 F. Supp. 3d at 40.
[10] Id. (citing Mahan, 179 F.R.D. at 55).
[11] Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (emphasis added) (cleaned up).
[12] Cleveland, 526 U.S. at 806 (rule applies when an affidavit “flatly contradicts” prior testimony); Armstrong, 647 F. Supp. 3d at 40 (rule applies when an affidavit “clearly contradicts” prior testimony); Mahan, 179 F.R.D. at 55.
[13]Gillen, 283 F.3d at 26 (“A subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment.”).
[14] Armstrong, 647 F. Supp. 3d at 40 (“the issue before the court is whether there is any inconsistency between the prior testimony and the new evidence, not the credibility of the statement) (emphasis added); Wilber v. Curtis, No. 15-10170-JCB, 2016 WL 5334649, at *2 (D. Mass. Sept. 22, 2016) (“Although Wilber seeks to discredit the defendants’ statement, this is not a basis for striking it. Accordingly, the Court denies Wilber’s motion to strike[.]”); Morell v. United States, 185 F.R.D. 116, 118 (D.P.R. 1999) (a “disputed question of fact cannot be decided on motion to strike”) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)); see Turner v. Hubbard Sys., Inc., 153 F. Supp. 3d 493, 495-96 (D. Mass. 2015) (“the scope of motions to strike is limited to challenging documents not in compliance with the Federal Rules of Civil Procedure”).
[15] Suzuki, 2019 WL 109340, at *7; Bergus, 2022 WL 7670168, at *1 n.1; Garcia-Garcia, 878 F.3d at 418 n.11.
[16] Turner, 153 F. Supp. 3d at 495-96
[17] Wilber v. Curtis, No. 15-10170-JCB, 2016 WL 5334649, at *2 (D. Mass. Sept. 22, 2016).
[18] Id.; see also Net 2 Press, Inc. v. 58 Dix Ave. Corp., 266 F. Supp. 2d 146, 159 (D. Me. 2003) (testimony contradicted by a different witness “can never be grounds for striking testimony. Particularly in the context of summary judgment, where the existence of disputes of material fact dictates the outcome, a party certainly cannot be heard to argue that conflicting testimony may not be considered merely because it is conflicting.”); Morell, 185 F.R.D. at 118 (“a disputed question of fact cannot be decided on motion to strike”) (cleaned up); Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) (same as previous).