There are two important lessons for Illinois lawyers in the recent Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 915 N.E.2d 88 (2d Dist. 2009)--
- "Evidence that would be inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment." This means that documents used to support a motion for summary judgment, including emails produced by the other side in discovery, must be properly authenticated.
- In Illinois, production of a document in discovery does not establish the document's authenticity. In other words, you can't establish authenticity merely by arguing that your opponent produced the document in discovery.
Though some states, like Texas, "have enacted civil procedure rules allowing the fact that a party produced a document in discovery to establish its authenticity," the Kumon court declined to establish such a rule in Illinois.
For further discussion of this case, see "eDiscovery issues: Authenticating e-mail produced in discovery," by Scott A. Carlson, Trial Briefs, Vol. 55, No. 4, 12/09 (newsletter of the ISBA's Section on Civil Practice & Procedure).
Related post: "Using Emails in Support of Summary Judgment or at Trial."