What is admissible evidence at summary judgment?

If you get involved in a telemarketing lawsuit, odds are you may want to file, or have to defend from a motion for summary judgment. It is important you know how to marshal your evidence and how to poke holes in theirs, and let's use TCPA lawsuit Callier v. Jascot Enters., No. EP-22-CV-00301-FM to learn more about the topic.

In this telemarketing lawsuit, plaintiff Brandon Callier sued Jascott Investments for violation of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. 227 et seq., 47 C.F.R. § 64.1200(c), and Texas state law. Callier said Jascot called him at his residential phone number it was listed on the national do-not-call registry, thereby violating 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(c)(2).

Callier also alleged that these calls violated 47 C.F.R. § 64.1200(d)(1), (2), and (4) because Jascot does not maintain an internal do-not-call list or train individuals on the use of such a list, and because it fails to identify the individual caller and entity on whose behalf the call is made. Finally, Callier alleged that Investments violated section 302.101 of the Texas Business & Commerce Code by making telephone solicitations to a person within Texas without holding the required registration certificate for doing so

After going through the discovery process both sides filed motions for summary judgement and Jascot filed a motion to strike a call log Callier submitted as part of his MSJ. First, the Court's ruling on the motion:

Dkt 200 - CALLIER v JASCOTT INVESTMENTS LLC 2.pdf

Download PDF • 254KB

[Jascot] now seeks to strike the call log Plaintiff filed alongside his summary-judgment motion (the “Call Log”). Plaintiff provided two additional call logs to Investments in discovery that detailed each call listed in the Call Log and provided an affidavit in his summary-judgment briefing explaining each call.3 Still, Investments now moves to strike the Call Log as hearsay, as a false copy, and as unauthenticated.

Evidence at the motion for summary judgment stage can be very relaxed in quality compared to trial. "Because the Call Log is capable of being presented in a form that would be admissible at trial, it is proper summary-judgment evidence and Investments’ motion is denied."

Evidence at the summary judgement state need only be presented in a form capable of being admissible at trial.

Evidence at the summary-judgment stage need not be in a form admissible at trial. Instead, it “need only be capable of being ‘presented in a form that would be admissible in evidence.’” Further, authentication is not required for evidence at this stage. The same principles hold for evidence that may be hearsay; so long as it may be presented in an admissible form, a court may consider hearsay as summary-judgment evidence.

Hearsay itself is an out-of-court statement that is offered to prove the truth of the matter asserted. Such statements are ordinarily not admissible unless they fall within an exception to the rule against hearsay. A statement made during trial testimony—even when it recounts previous statements made by the person testifying—is not hearsay.

Jascot's argument - the notes Callier jotted down about the calls he received were inadmissible hearsay - was never going to work.

[Jascot] argues that the Call Log is hearsay outside of any exception and says that it therefore should be stricken from the summary-judgment record. At the outset, the Court notes that any “statements” contained in the Call Log that could be hearsay were made by Plaintiff, such as statements that Plaintiff “TOLD [Investments] NEVER TO CALL”10 and made a second do-not-call request.11 The declaration filed alongside Plaintiff’s motion for summary judgment and the Call Log explicitly states that Plaintiff “could testify”12 to the facts underlying the Call Log.13 Investments does not—and could not—offer authority showing Plaintiff cannot testify about the calls he received and what he said in response to the calls. Such testimony from Plaintiff would not be hearsay and would be admissible in evidence. As such, Investments has not shown that the evidence is not “capable of being presented in a form that would be admissible in evidence” at trial.14 The Court will not strike the Call Log based on Investments’ hearsay argument.

If you recall earlier, Callier had three different call logs and Jascot argued that because apparently there were not identical, "inconsistencies mean the evidence is not reliable and should be stricken. According to Investments, one call log Plaintiff produced in discovery had “a different format, different type sizes, and a different identifying caption at the left top of Page 1 . . . , no numberings on its five [] pages, [and] . . . an additional, sixth column of content or ‘notes’ for each line."" The court was not impressed.

[Jascot] also makes much of a second call log Plaintiff provided in discovery that has six pages and “127 lines of information” as opposed to the Call Log’s 121 lines. The third log also has “a wholly different date format” and contains Plaintiff’s “work notes.” The Court will not penalize Plaintiff for providing thorough discovery. The differences Investments musters are not substantive and do not raise concerns about reliability. Indeed, the evidence Investments points to only shows that Plaintiff provided notice of the calls he would seek relief for early in litigation and at various levels of detail as required by discovery. The purported inconsistencies do not require striking the Call Log.

Finally the court shot down Jascot's last and most irrational argument, that Callier would be unable to authenticate his own documents:

Finally, Investments argues that Plaintiff is not capable of authenticating the Call Log. But the Call Log need not be authenticated at the summary-judgment stage.18 Also, Plaintiff’s declaration states that he received the calls and text messages listed on the Call Log, lists each call within the declaration itself, and notes that Plaintiff himself prepared the Call Log. Plaintiff can authenticate the Call Log at trial if needed. Nothing about the Call Log’s authentication requires the Court to grant Investments’ motion.

Now this is all fun and games, watching Callier shoot down a bunch of nonsense regarding the documents he created. But what if the shoe is on the other foot, the telemarketer is providing a declaration that they know nothing about the calls, or internally generated documents that seem to support their case?

If the first you see them is in your opponent's motion for summary judgment, you probably screwed up in your discovery requests so that they didn't have to show you them before, or you may be able to get them excluded because they didn't. Discovery is your ground game, it generally is where your case is perhaps won, but needs to be good enough to not be lost.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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