stating that an employee’s letter, submitted in opposition to summary judgment, should have been considered by the district court even if it was inadmissible hearsay because such a claim “does not undercut the existence of any material facts the letter may put into question.” Celotex has clearly made a “distinction between evidence admitted for trial and evidence admitted for avoidance of summary judgment”
How later courts described this case
- stating that an employee’s letter, submitted in opposition to summary judgment, should have been considered by the district court even if it was inadmissible hearsay because such a claim “does not undercut the existence of any material facts the letter may put into question.” Celotex has clearly made a “distinction between evidence admitted for trial and evidence admitted for avoidance of summary judgment”
- holding that, “if evidence otherwise inadmissible provoked no timely objection, it could and, if material, should be factored into a summary judgment decision”
- observing that in the absence of an objection, inadmissible evidence “could and, if material, should be factored into a summary judgment decision”
- exclusion of letter at summary judgment improper because it was based on the writer's personal knowledge and indicated that there was no impediment to the writer testifying at trial as to the facts described in the letter
Written by the judges who cited it.
The opinion
EDMONDSON, Circuit Judge,
concurring:
I concur in the court’s judgment and in most of the court’s opinion. I doubt, however, that inadmissible hearsay can be properly used to oppose summary judgment, especially if it is not shown that admissible evidence to the same effect will be available at trial. The law in this circuit prior to Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986), clearly provided that evidence inadmissible at trial could not be used to avoid summary judgment. See Victoria L. by Carol A. v. District School Bd., 741 F.2d 369, 373 (11th Cir.1984); Pan-Islamic Trade Corp. v. Exxon, 632 F.2d 539, 559 (5th Cir.1980); 1 Broadway v. City of Montgomery, 530 F.2d 657, 661 (5th Cir.1976), Roucher v. Traders & General Ins. Co., 235 F.2d 423 (5th Cir.1956). Of course, the Supreme Court could change the law. But, it is not plain to me that Celotex actually endorses the use of hearsay in summary judgment proceedings.
In Celotex , the Court said, “we do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” 106 S.Ct. at 2553 (emphasis *1017 added). Even so, the Court was not addressing the question of whether hearsay could be relied upon to defeat summary judgment. As has long been recognized, hearsay has weaknesses that go beyond questions of mere form. See generally Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177 (1948).
To understand the word “form”, the pertinent sentence must be read in its context:
We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.
106 S.Ct. at 2553-54 .
Probably, the Supreme Court was only emphasizing that otherwise admissible evidence can be submitted in the shape of an affidavit at the summary judgment stage, although at trial such a document would be inadmissible and, instead, a live witness or deposition would have to be used to present the evidence. In any event, I question whether we should wipe out established circuit law in the absence of a truly definitive statement by the Supreme Court that otherwise inadmissible hearsay can be properly and effectively used to oppose a motion for summary judgment.
Whether hearsay, if objected to, can defeat a motion for summary judgment is an important legal issue. Resolving upon the correct answer is unnecessary to determining this case, however. As today’s court’s opinion shows, there was no contest to the admissibility of the pertinent letter (the hearsay) in the trial court. Accordingly, this court’s observations about hearsay and summary judgment largely are gratuitous and that important issue remains open for debate in this circuit.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as . precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October I, 1981.