In In re 3RC Mechanical & Contracting Services, LLC v. Climatemp, Inc., 2013 WL 6172673 (N.D.Ill. 2013), the Debtor’s trustee sued the defendant for breach of a construction contract.
The defendant moved for summary judgment and supported the motion with its project manager’s affidavit and over 30 exhibits – mainly invoices and bills. The Trustee moved to strike about half of the exhibits on hearsay grounds.
Ruling: Motion denied.
– summary judgment evidence (either for or against) must be admissible at trial;
– copies of documents can’t simply be “slapped on the back of a party’s statement of facts or its response” with a statement that the documents are “true and correct”;
– a summary judgment affidavit which refers to documents must lay the necessary foundation for those documents;
– ‘hearsay within hearsay’ is not admissible unless each layer of hearsay is properly admitted under a hearsay exception;
– documents generated by third parties can sometimes qualify as admissible business records where they are integrated into the proponent’s own business records and the business relies on those third party records**;
– a statement is hearsay only if offered to prove the truth of the matter asserted;
– a statement isn’t hearsay if it’s offered to show its effect on the witness;
– out-of-court invoices are not hearsay where they are offered to show their amount only (not for their contents’ truth)
¶¶ 2-3; FRE 801(c)(2), 803(6).
Applying these rules, the Court found that the bills and invoices appended to the defendant’s affidavit were not offered for their truth. That is, the contractor didn’t offer the invoices to prove to the court that the third party vendors and contractors actually performed the work contained on the invoices.
Instead, the invoices were offered to show their effect on the project manager and to illustrate why he charged certain the amounts in question.
The invoices substantiated the affidavit testimony that the defendant had to hire substitute subcontractors after the Debtor failed to perform and went out of business. ¶¶ 2-3.
The Court also emphasized that the project manager had hands-on involvement with the projects in question and spoke from personal knowledge about what work was was completed on the jobs. ¶ 3.
Comments: The hearsay (offered for the truth) vs. non-hearsay (to show effect on listener/witness) distinction is a fine-line one. The effect-on-the-listener/witness rule seems amorphous in that whenever someone attaches a third party’s records to an affidavit, all he has to argue is that the invoices are offered purely to show there impact on the listener/witness.
The evidence rules laid out in this case should prove helpful to business litigants who are trying to get a third party’s records before a court or jury over a hearsay objection.