Friday, August 9, 2013

Bad Breaks with Partially Published Opinions

Civic Partners Stockton v. Youssefi, C067304 (D3 Aug. 8, 2013)

It has long been established in federal practice that the fact that the opposing party produced a document in response to an RFP asking for it is prima facie evidence that the document is what it purports to be. See Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (attorney declaration sufficient to authenticate documents when they appear to be authentic and have been produced by opponent in discovery). While that is surely the law in California too, state practitioners have long been deprived of a case that actually says so.

We thus must regularly suffer through specious evidentiary objections on summary judgment motions to the effect that a document “lacks foundation” because, even though the other side produced it, and even though on its face it is what it appears to be, and even though there is no evidence that it is not authentic, it is authenticated only by an attorney declaration because a witness with percipient knowledge of it hasn’t been deposed yet. In response, we need to make a cumbersome—but entirely correct—explanation based on §§ 1400 and 1414 of the Evidence Code to establish that the objection is without merit. 

Civic Partners could have solved that problem. Actually, it did solve that problem, explaining that, under Evidence Code § 1414, if you make an inspection demand for X, and the other side produces something that appears to be X, that would generally establish its authenticity as X for the purposes of using the document in an summary judgment motion. Unfortunately, the court chose not to publish that part of the opinion, instead publishing only the part of its analysis that deals with a relatively uncontroversial issue of copyright preemption, likely because that part of the opinion was the subject of a short concurrence. See Cal. R. Ct. 8.1105(c)(9) (separate concurrence merits publication when publication would contribute to the law); but see id. 8.1105(c)(2) (decision applying law to new facts also merits publication). So, instead of being able to say “That objection is without merit. See Civic Partners”—like we’ve been able to do in federal court for twenty years—we’ll have to soldier on making our plodding Evidence Code arguments over and over again.

1 comment:

  1. Recently came across this case that could be cited for the proposition that an attorney declaration is sufficient to authenticate documents produced by the other side in discovery. Wall Street Network, Ltd. v. New York Times Co., 164 Cal. App. 4th 1171, 1182-83 (2008).

    The court's reasoning on the foundation issue is not all that clear. But the case can be fairly cited as rejecting an objection that an attorney's declaration attesting to the other side's production of a document in discovery "was inadequate to establish that the copy of the [document] was admissible because the attorney] had no personal knowledge of the [document's] creation."