The nuts and bolts of motion practice often baffle new lawyers.  Perhaps their profs felt that lifting the veil on so mundane a thing would demean both pedant and learner.  Or maybe they themselves never tried to learn.

In any case, a key nut or bolt — Blawgletter forgets which — involves proving up the realness of papers and things — memos, letters, spread sheets, contracts, widgets, thermonuclear devices, and whatnot – that your side desires to use as evidence.

Some old school lawyers will say get an affidavit to meet the Rule 901(a) mandate for "authentication or identification".  Some savvy ones will tell you instead to obtain a declaration, under 28 U.S.C. 1746, which saves you from having to find a notary public to witness the declarer's signing.  Others still will point you to Rule 902, which lists things that self-authenticate.

Today the Tenth Circuit held that the looks of stuff can get the stuff over the Rule 901 hurdle. 

The district court, you see, ignored a pile of documents that Party B filed to oppose Party A's motion for summary judgment.  Many in the pile bore the letterhead of Party B; others didn't but still looked real enough and came from Party B's files.  Reversing, the court of appeals said:

Rather than considering each document to detemine whether it was authenticated, the district court summarily disregarded these exhibits because "no authentication by any witness [wa]s offered." . . . Because no authenticating affidavit is required . . . the district court committed an error of law by categorically disregarding these exhibits and therefore abused its discretion . . . .

The Law Co., Inc. v. Mohawk Construction and Supply Co., Inc., No. 08-3076, slip op. at 13 (10th Cir. Aug. 17, 2009).

The panel quoted Rule 901(b)(4), which says that "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances" may show genuineness.

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