The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:16-CV-271-D
Kimberly Biggs & L.B.,
Plaintiffs,
v.
Order
Edgecombe County Public School
Board of Education, et al.,
Defendants.
Plaintiff L.B. has brought claims against the Edgecombe County Public School Board of
Education and several of its employees arising out of disciplinary action taken against L.B. for her
sexual activities with male students while on a field trip. D.E. 94. The parties have both moved for
summary judgment and filed thousands of pages of documents in support of their motions.
The Board has asked the court to strike from the record various documents L.B. submitted
in support of her motion for summary judgment. It provides three reasons why the court should
strike the documents. First, it argues that the court should strike portions of L.B.’s summary
judgment declaration that contain inadmissible evidence or conflict with her deposition testimony.
Second, it maintains that the court should strike unsworn and unauthenticated documents that L.B.
submitted in support of her motion. And third, it claims that it is appropriate for the court to strike
documents that L.B. submitted in support of her motion for summary judgment but did not disclose
in discovery. L.B. opposes the motion to strike. D.E. 187.
The Federal Rules of Civil Procedure allow parties to submit various documents in support
of a motion for summary judgment. See Fed. R. Civ. P. 56(c)(1). If a party chooses to submit an
affidavit or declaration in support of their motion, the document must be “made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Id. 56(c)(4). And the rules allow a party to
“object that the material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.” Id. 56(c)(2). Once a party objects, the party offering the evidence bears
the burden to “show that the material is admissible as presented or to explain the admissible form
that is anticipated.” Id. 56 (2010 Advisory Committee Notes).
I. Challenges to Statements in L.B.’s Declaration
The Board first contends that portions of L.B.’s declaration are inadmissible because it
includes inadmissible hearsay, assertions that are not based on personal knowledge, and
contradictions and inconsistencies with her own prior deposition testimony. See D.E. 132–7 at ¶¶
20, 27, 30, 34, 43, 53, 56, 57.
A. Statements that Allegedly Conflict with Prior Testimony
The Board claims that language in paragraphs 27, 34, 43, 56, and 57 in L.B.’s affidavit
conflict with her deposition testimony or other evidence. Ex. 1 to Board’s Mot. to Strike, D.E.
149–1. Although a party may not create a genuine issue of material fact by presenting an affidavit
that conflicts with their own prior statements, submitting an affidavit that presents a conflict does
not, by itself, violate any of the provisions of Rule 56(c). Thus, the court will not strike these
paragraphs from L.B.’s affidavit.
B. Alleged Lack of Personal Knowledge by the Affiant
The Board next challenges the paragraph in L.B’s affidavit that states, “Without my
consent or knowledge T.W. recorded B.O. and D.M. having sexual intercourse with me and
distributed it via a social media application, Snapchat.” D.E. 149–1 at 1. It claims that the affidavit
“[f]ails to demonstrate personal knowledge as indicated by ‘[w]ithout my consent or knowledge.’”
Id.
L.B. no doubt has personal knowledge of whether she consented to being recorded while
engaged in sexual activity. And it is equally certain that she has personal knowledge of whether
she knew she was being recorded. It is undisputed that T.W. recorded the sexual encounter with
L.B. Compare D.E. 128 ¶ 88 with D.E. 150 ¶ 88. And a review of the entire record shows that it
was widely known that T.W. distributed the video on Snapchat. D.E. 132–53; 132–54; 150 ¶¶ 169
& 178. Thus, while the court would have preferred a more detailed statement, the court cannot say
that L.B. lacked personal knowledge of this fact. This portion of the motion to strike is denied.
C. Alleged Hearsay Statements
The Board’s final challenge to L.B’s affidavit involves two sentences that the Board claims
are inadmissible hearsay. The first challenged sentence states, “Ms. Sugg never informed me of
the existence or provided me with a copy of the written statements she collected regarding my
presence in the sex video distributed by T.W.” D.E. 132–7 ¶ 30 & 149–1 at 1. The Board claims
that this statement is inadmissible “[h]earsay to the extent the declaration attempts to summarize
the contents of the written statements.” D.E. 149–1 at 1. This statement is not inadmissible hearsay
because L.B. has not offered it for the truth of the matter in the written statement, but is offering it
to show that Sugg did not inform her of or provider her with a copy of T.W.’s written statement.
This portion of the motion to strike is denied.
The second challenged sentence states, “No one informed my mother or me that during the
time of the appeal, Superintendent Farrelly had reviewed the field trip incidents and reprimanded
my principal, Mr. Harris, for his delay in punishing me for engaging in sex on the trip and for his
failure to provide well-qualified chaperones on the field trip.” D.E. 132–7 & 149–1 at 2. The Board
contends that this statement is inadmissible “[h]earsay to the extent the declaration attempts to
summarize the contents of Farrelly’s letter.” D.E. 149–1 at 2. Much like the Board’s other hearsay
challenge, this challenge fails because L.B. is not offering it for the truth of what is in Farrelly’s
letter, but is offering it to show what information L.B. and her mother had at the time of her appeal.
This portion of the motion to strike is denied.
II. Challenge to Unsworn Statements
The Board seeks to strike two handwritten, unsworn witness statements (D.E. 132–61 and
132–63) by students about the events of the D.C. field trip and an email between Wichard and
personnel at North Carolina’s Governor’s School. It claims these statements are unauthenticated
and contain inadmissible hearsay.
Federal Rule 56 requires that evidence presented at the summary judgment stage of a
proceeding is objectionable only if it “cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). As the Fourth Circuit has explained, this provision means that
“[t]he court may consider materials that would themselves be admissible at trial, and the content
or substance of otherwise inadmissible materials where the ‘the party submitting the evidence
show[s] that it will be possible to put the information . . . into an admissible form.’” Humphreys
& Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015), as
amended (June 24, 2015) (quoting 11 James Wm. Moore et al., Moore’s Federal Practice §
56.91[2] (3d ed. 2015). Here, it is possible to put the information in the statements into an
admissible form by calling the individuals who wrote the statements and email as witnesses. And
if the Board is concerned about the authenticity of the documents, the court notes that the student
statements came from its own records and that the email’s author has authenticated it elsewhere in
the record. Thus, this portion of the motion to strike is denied.
III. Challenge to Exhibits Not Disclosed in Discovery
Finally, the Board asks the court to strike exhibits that L.B. failed to disclose in discovery.
D.E. 132–70, 132–71, 132–72, 132–73, 132–74, 132–75. Federal Rules 26 and 34 require parties
to disclose relevant documents. Fed. R. Civ. P. 26, 34. And Rule 37(c) requires parties to disclose
relevant information under Rule 26(a) and (e) and supplement earlier incomplete or incorrect
responses. Id. 26, 37.
The Fourth Circuit has explained that “the district court has broad discretion in determining
the appropriate sanction for a party’s noncompliance with a discovery request.” Majestic Distilling
Co., Inc. v. Stanley Stawski Distrib. Co., 205 F.3d 1333, 2000 WL 227919, *4 (4th Cir. 2000)
(unpublished table decision); see also Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 505 (4th
Cir. 1977). But a court should not preclude evidence if a party’s failure to disclose it was
“substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1) (noting that a court may impose
sanctions “in addition to or instead” of preclusion despite the nondisclosure’s harm or
justification); S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir.
2003).
In making this determination, district courts consider five factors. To begin with, the court
should consider, “the surprise to the party against whom the evidence would be offered[.]” Id. at
597. Then it should look to “the ability of that party to cure the surprise[.]” Id. Next it should ask
about “the extent to which allowing the evidence would disrupt the trial[.]” After those factors the
court should weigh “the importance of the evidence[.]” Id. And finally, the court should take into
account “the nondisclosing party’s explanation for its failure to disclose the evidence.” Id.
L.B. maintains that her failure to produce this evidence during discovery was harmless.
She points out that those exhibits consist of screenshots of publicly available websites and a
Facebook page. She identified these exhibits with full citations and hyperlinks in her Statement of
Material Facts. Because Defendants generated these documents and have possession of them, L.B.
contends that there is no surprise to Defendants.
L.B. alleges that these exhibits reflect Defendants’ decisions to recognize male students
involved in the field trip incident without similarly honoring her accomplishments. And L.B.
asserts that the exhibits do not raise a new claim but instead bear out her argument that male
students received more favorable treatment.
Finding L.B.’s reasoning persuasive. And given that the Defendants were aware or could
easily learn about the information in these exhibits, the court finds that Fourth Circuit precedent
counsels against excluding them. Thus, the court denies this portion of the motion to strike.
Dated: February 6, 2020
Robert T. Numbers, II
United States Magistrate Judge