In a recent opinion, Las Vegas Sands v Nehme, the Ninth Circuit dealt with the procedures available to parties seeking to authenticate documents lodged in connection with a motion for summary judgment. The case highlights the importance of always ensuring that attorneys offer grounds for authentication when filing documents with the court.

Background & Holding

Las Vegas Sands, LLC owns and operates the Venetian Casino, Hotel, and Resort, located in fabulous Las Vegas. Mr. Nehme was a frequent guest at the Venetian, and as part of its casino operation, the Venetian extended to Mr. Nehme a line of credit in the form of a several "casino markers" totaling $500,000. After gambling at the Venetian several times, Mr. Nehme decided to call it quits. Mr. Nehme paid off his outstanding markers and had his attorney send the Venetian a letter requesting that the casino terminate his credit line and not extend him any further credit. But Mr. Nehme could not stay away. A few months later, Mr. Nehme returned to the Venetian and signed a new marker in the amount of $500,000, all of which Mr. Nehme lost playing Blackjack. The Venetian attempted to collect on the debt but was unable to do so and, as a result, filed suit against Mr. Nehme.

In the proceedings before the district court, the parties filed cross-motions for summary judgment. Attached as exhibits to his motion, Mr. Nehme's attorney included a copy of the letter to the Venetian, as well as a certificated mail receipt. Sua sponte, the district court decided to exclude the exhibits based upon Mr. Nehme's failure to file the documents as attachments to a supporting affidavit authenticating them. The Ninth Circuit reversed the district court's decision after it concluded that the district court's ruling constituted an abuse of its discretion. In its opinion, the Ninth Circuit acknowledged that Federal Rule of Evidence 901(b)(1) requires that documents authenticated through personal knowledge be attached as exhibits to a supporting affidavit of the witness whose knowledge provides the basis for authentication. However, the court nevertheless reasoned that the district court's ruling constituted an abuse of discretion because the district court's consideration of the issue sua sponte, combined with its failure to consider alternative grounds for authentication (such as those as set forth under 901(b)(4)), meant that the district court had applied the incorrect legal standard. As a result, the Ninth Circuit remanded the case with instructions that the district court consider alternative grounds for authentication.

How To Use

Las Vegas Sands v. Nehme demonstrates the importance of always providing the grounds for authenticating the documents filed in connection with a motion for summary judgment. In the case, the district court sua sponte excluded the defendant's documents without permitting him an opportunity to respond to its ruling. Although the Ninth Circuit ultimately reversed the district court's decision and remanded the case, the failure of defendant's attorney to offer supporting grounds for authentication ultimately resulted in significant delay and additional expense. Had defendant's attorney offered his supporting grounds in the first instance, the district court would have been able to consider those grounds, rendering the subsequent appeal and remand unnecessary. The case thus demonstrates why attorneys should always offer grounds supporting authentication when filing documents in connection with a motion for summary judgment.